United States v. Crockett , 370 F. App'x 900 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 23, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-1027
v. (D.C. No. 1:07-CR-00172-CMA-6)
(D. Colo.)
BREVELLE CROCKETT,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR, and GORSUCH, Circuit Judges.
Mr. Brevelle Crockett appeals the district court’s imposition of a sentence
of 135 months’ imprisonment, arguing that the district court applied the incorrect
standard of proof in determining his sentence, thereby causing a violation of his
Fifth and Sixth Amendment rights to due process and a jury trial. Because Mr.
Crockett waived his Sixth Amendment right to a jury as a part of his plea
agreement and because our precedent supports the use of the standard of proof
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with under the terms and conditions
of 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
applied by the district court under the circumstances in this case, we affirm.
Mr. Crockett pled guilty to knowingly possessing with intent to distribute
more than 500 grams of a mixture and substance containing a detectable amount
of cocaine (here, approximately 994.9 grams) in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. The statutory maximum sentence for a
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) is forty years’ imprisonment.
The parties stipulated that a within-guideline sentence would be reasonable. With
respect to sentencing decisions that remained to be determined by the district
court at sentencing, the parties also agreed that “[t]he Court [was] free . . . to
reach its own findings of facts and sentencing factors considering the parties’
stipulations, the pre-sentence investigation, and any other relevant information.”
Rec., vol. I at 298 (citation omitted).
The parties disputed the appropriate base offense level in the plea
agreement. The government’s position was that pursuant to U.S.S.G. § 1B1.3, the
base offense level should be computed by calculating the total amount of cocaine
involved in this case (5 kg) for a level of thirty-eight. Mr. Crockett argued that
the base offense level should be calculated based upon the amount of cocaine to
which he pled guilty, a base-offense level of twenty-six. Mr. Crockett did not
contest the facts proffered by the government regarding his relevant offense
conduct in the plea agreement, but reserved the right to do so at sentencing.
The presentence report’s (PSR) description of the offense conduct recited
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the government’s evidence of relevant drug quantities. The PSR calculation
resulted in an advisory guideline range of 135 to 168 months. Neither Mr.
Crockett nor the government objected to the contents of the PSR.
At sentencing, the district court confirmed that neither party had filed
objections to the PSR and agreed to hear argument on the sentencing issues left
open in the plea agreement. At the sentencing hearing, the parties limited their
arguments to the base offense level dispute. Mr. Crockett’s counsel contended
that the court should limit its consideration to possession with intent to distribute
the 994.9 grams of cocaine. But he acknowledged, “I understand what the
guidelines are” and conceded, “I don’t have any specific case law or anything
else, precedent wise, that your reading of the statute isn’t accurate.” Rec., vol. II
at 13. Neither party presented any evidence.
The district court observed: “[N]either the Government nor the defendant
disputes the factual contents of the presentence report, nor have they filed any
objections to the presentence report,” and concluded, “therefore the factual
statements and guideline applications in the report are adopted without objection
as the Court’s findings of fact concerning sentencing.’” Rec., vol. II at 21.
Relying on the PSR, the district court found that Mr. Crockett’s relevant
conduct included involvement with quantities exceeding four and a half kilograms
of crack cocaine. The court’s calculation, after adjustments, resulted in a total
offense level of thirty-three. With Mr. Crockett’s criminal history category of I,
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the guideline range was 135 to 168 months of imprisonment. The court sentenced
him to 135 months. This appeal followed.
Mr. Crockett raises two issues on appeal: (1) “[w]hether due process
requires that sentencing facts be found by a higher standard than preponderance
of the evidence when the resulting enhancements substantially increase a
Guidelines sentence;” and (2) “[w]hether the sentence was entered in violation of
the Sixth Amendment, because it was predicated on essential facts found by a
preponderance of the evidence.” Aplt. Br. at 2.
Because Mr. Crockett did not raise his objections below, we review both
issues for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th
Cir. 2005) (en banc). “Plain error review applies even if the alleged error is of
constitutional dimension.” United States v. Magallanez, 408 F.3d 672, 683 (10th
Cir. 2005) (citing Johnson v. United States, 520 U.S. 461, 466 (1997)).
“However, the plain error test is applied less rigorously in the context of alleged
constitutional error than in the context of non-constitutional error.” Id. Plain
error is “(1) error, (2) that is plain, which (3) affects substantial rights, and which
(4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Gonzales-Huerta, 403 F.3d at 732.
Mr. Crockett asserts that due process may require a higher standard of
proof in situations where the sentencing enhancement becomes the “tail which
wags the dog of the substantive offense.” Aplt. Br. at 14 (quoting States v.
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Townley, 929 F.2d 365, 369 (8th Cir. 1992) (quoting McMillan v. Pennsylvania,
477 U.S. 79, 88 (1986))). We addressed this issue in United States v. Olsen and
stated:
[O]ur circuit has never adopted the clear and convincing standard in
so-called disproportionate impact cases. While recognizing “strong
arguments that relevant conduct causing a dramatic increase in
sentence ought to be subject to a higher standard of proof,” we have
long held that sentencing facts in the “ordinary case” need only be
proven by a preponderance. United States v. Washington, 11 F.3d
1510, 1516 (10th Cir. 1993); see also United States v. Frederick, 897
F.2d 490, 492 (10th Cir. 1990); [United States v.] Crockett, 435 F.3d
[1305,] [] 1318-19 [(10th Cir. 2006)]. Nonetheless, we have reserved
the question of whether, in some extraordinary or dramatic case, due
process might require a higher standard of proof. See United States
v. Espinoza, 67 F. App’x 555, 561 (10th Cir. 2003) (unpublished)
(characterizing United States v. Mendez-Zamora, 296 F.3d 1013(10th Cir. 2002), as “apparently leaving open the possibility that a
more dramatic increase in sentence might warrant a heavier burden of
proof”).
519 F.3d 1096, 1105 (10th Cir. 2008); see also United States v. Leifson, 568 F.3d
1215, 1219 n.2 (10th Cir. 2009); United States v. Hinson, 585 F.3d 1328, 1341
n.6 (2009) (stating that “post-Gall, [] the standard remains proof by a
preponderance of the evidence.”).
The district court was bound by our holding in Olsen. Mr. Crockett did not
dispute the standard of proof at sentencing below, nor did he provide the district
court, or us, with any case law establishing that this is an “extraordinary or
dramatic” case. We therefore conclude that the district court’s decision to apply
the preponderance of the evidence standard of proof (assuming that this was
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actually the standard used) did not constitute a plain error.
It seems that Mr. Crockett may also be claiming a violation of his Sixth
Amendment right to a jury trial based on the fact that a judge – not a jury – was
the factfinder at the sentencing stage. Assuming that is his argument, we
conclude that it lacks merit.
Although Mr. Crockett’s failure to object to the facts in the presentence
report did not constitute a waiver of the Sixth Amendment right to have to a jury
determine beyond a reasonable doubt that he was guilty as charged, see United
States v. Bass, 411 F.3d 1198, 1204 n.7 (10th Cir. 2005), he voluntarily waived
his right to a jury trial when he pled guilty. See id. (distinguishing cases where
defendants “simply failed to object to a factual allegation in a presentence report”
from those where defendants “as part of their respective plea agreements, signaled
their intent generally to waive their constitutional rights. . . .”); United States v.
Leach, 417 F.3d 1099, 1103 (10th Cir. 2005) (“A defendant’s right to a jury trial
at sentencing, just like the right to a jury trial at the guilt-innocence phase, can be
voluntarily waived.”); see rec., vol. 1 at 303-09. Where, as here, a defendant
waives, without qualification, his right to a jury trial as a part of his plea
agreement, we have concluded that he “may not [later] assign as error the failure
of the district court to afford [him] a jury determination of facts relevant to
sentencing.” Leach, 417 F.3d at 1104. Accordingly, no error occurred when the
district court acted as the factfinder at the sentencing stage, because Mr. Crockett
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voluntarily waived his right to a jury trial.
We AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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