United States v. Smith , 162 F. App'x 818 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-6301
v.
(D.C. No. CR-03-242-T)
(W.D. Okla.)
MARION KAYE SMITH,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY and HENRY, Circuit Judges.
Defendant-Appellant Marion Smith argues that the district court violated
his constitutional rights by enhancing his sentence based on facts not admitted by
him nor found by a jury. The government concedes that error occurred and that
the error was not harmless. We therefore REMAND for resentencing.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
As a result of a substantial federal and state investigation into the
trafficking of cocaine base in southwest Oklahoma, Smith was indicted along with
four other individuals for a variety of drug and firearm charges. Smith pleaded
guilty to conspiracy to possess with intent to distribute 50 or more grams of
cocaine base and 500 or more grams of cocaine. Smith’s presentence report
recommended a base offense level of 38 based on drug quantity, a two-level
enhancement for possession of a dangerous weapon, and a three-level reduction
for acceptance of responsibility. This total offense level of 37, coupled with a
criminal history category of IV, resulted in a recommended sentence range of 292
to 365 months.
Before sentencing, Smith filed an objection to the calculation of his base
offense level. Specifically, he argued that, pursuant to the Supreme Court’s
decision in Blakely v. Washington, 542 U.S. 296 (2004), he could not be
sentenced based on a higher drug quantity than the amount to which he pleaded
guilty, because any facts used to enhance a sentence must be admitted by the
defendant or found by a jury beyond a reasonable doubt.
Smith renewed his Blakely objection at his sentencing hearing. The court
responded by ruling that it would impose a sentence under the Sentencing
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Guidelines, as the issue of the Guidelines’ constitutionality was at that time
pending before the Supreme Court, but that it would also impose an alternative
sentence in the event that the Guidelines were invalidated. The court then
announced a Guidelines sentence of 292 months and, in the event that the
Guidelines were ruled unconstitutional, an alternative sentence of 14 years (168
months).
DISCUSSION
In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), the
Supreme Court held that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Id. at 756. “As a result, the
Court held that mandatory application of the Guidelines violates the Sixth
Amendment when judge-found facts, other than those of prior convictions, are
employed to enhance a sentence.” United States v. Gonzalez-Huerta, 403 F.3d
727, 731 (10th Cir.) (en banc), cert. denied, 126 S. Ct. 495 (2005).
Smith’s objection based on Blakely was sufficient to preserve his Booker
argument on appeal, see United States v. Geames, 427 F.3d 1333, 1339 (10th Cir.
2005), and thus we review for harmless error, see United States v. Riccardi, 405
F.3d 852, 874-75 (10th Cir.), cert. denied, 126 S. Ct. 299 (2005). Booker error is
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harmless when the government shows that the error “did not affect the district
court’s selection of the sentence imposed.” Id. at 875 (quotations omitted).
The government concedes, and we agree, that the district court committed
constitutional Booker error. The government also admits that it cannot show that
the error did not affect the sentence imposed in light of the fact that the district
court announced an alternative sentence lower than the Guideline sentence
actually imposed. We agree that the error was not harmless.
We therefore REMAND this action to the district court with instructions to
vacate Smith’s sentence and to resentence him in accordance with Booker.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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