United States v. Caldwell , 21 F. App'x 810 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-1501
(D.C. No. 94-CR-210-Z)
DEDRICK SHAWN CALDWELL, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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.
This is the third sentencing-related appeal in this case. Defendant Dedrick
Shawn Caldwell was convicted by a jury of one count of unlawful possession with
intent to distribute and distribution of more than five grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). Prior to trial, the government filed an
information pursuant to 21 U.S.C. § 851, alleging that defendant had a prior
felony drug conviction that would enhance his statutory maximum sentence.
In addition to this enhancement of the statutory sentence resulting from the
prior felony drug conviction, defendant was also subject to an enhanced guideline
sentence as a career offender. The district court found that he had at least two
prior violent or drug-related felony convictions. See United States Sentencing
Guidelines Manual § 4B1.1 (2000) (USSG). Defendant does not contest his status
as a career offender in this appeal.
The district court, relying on an Application Note to the career offender
guideline then in place, see USSG § 4B1.1, App. note 2 (1994), sentenced
defendant to a term of 262 months in prison. In defendant’s first appeal in this
case, we (1) affirmed his conviction; (2) rejected his contention that the district
court erred by refusing to depart downward from the career offender guideline;
and (3) acting on a cross-appeal filed by the government, vacated defendant’s
-2-
sentence and remanded for recalculation of the guideline amount. United States
v. Caldwell , Nos. 95-1003, 95-1023, 1996 WL 185749 (10th Cir. Apr. 17, 1996). 1
On remand for resentencing, the district court granted defendant’s motion
for a downward departure from the career offender guideline. It departed to a
guideline range of 140 to 175 months based on an offense level of 28–the
applicable offense level without the career offender enhancement–and a criminal
history category of VI. Based on the departure, the district court sentenced
defendant to 175 months’ imprisonment. The government appealed this sentence,
and we again remanded with instructions to the district court to resentence
defendant within a guideline range of 360 months to life imprisonment. United
States v. Caldwell , 219 F.3d 1186 (10th Cir. 2000).
Before defendant could be resentenced, however, the United States
Supreme Court decided the case of Apprendi v. New Jersey , 530 U.S. 466 (2000).
Consequently, defendant filed a motion pursuant to 28 U.S.C. § 2255, seeking to
correct his sentence in light of Apprendi . Defendant argued that Apprendi
required the jury to be instructed upon and to find two elements that affected the
length of his sentence: (1) the quantity of the controlled substance involved in
1
The district court had applied a guideline range of 262 to 327 months’
imprisonment based on a career offender level of 34 and a criminal history
category of VI. We remanded for resentencing within a guideline range of
360 months to life imprisonment based on a career offender offense level of 37,
the correct offense level in view of the enhanced statutory sentence.
-3-
the offense; and (2) the fact of his prior convictions leading to the statutory
enhancement and career offender status. Since the jury had not been required to
find the drug quantity applicable to his offense, defendant contended that he could
only receive a statutory maximum sentence of twenty years under the catch-all
provision of 21 U.S.C. § 841(b)(1)(C) (enhanced to thirty years based on his prior
felony drug conviction, see id. ). He further argued that since the jury had not
found that he had the requisite prior felony convictions, he was not subject to the
career offender enhancement or the maximum sentence enhancement to thirty
years pursuant to § 841(b)(1)(C).
The government conceded that because the jury had not found the drug
quantity, defendant could only be sentenced under § 841(b)(1)(C) to a maximum
statutory term of thirty years. It contended, however, that Apprendi had not
overruled the holding in Almendarez-Torres v. United States , 523 U.S. 224(1998), that the fact of a prior conviction is not an element of the offense that
must be pled in the indictment and found by the jury. Therefore, it rejected the
remainder of defendant’s arguments.
The district court agreed with the government’s position. It calculated
defendant’s guideline sentence as follows. Because Apprendi required that the
maximum statutory sentence be adjusted to thirty years, the offense statutory
maximum for purposes of the career offender guideline was now “25 years
-4-
or more” rather than “life.” See USSG § 4B1.1. Therefore, defendant’s offense
level under the career offender guideline was 34, and his Criminal History
category was VI. See id. This created a guideline range of 262 to 327 months.
The district court sentenced defendant at the lower end of this range, to 262
months.
In this appeal, defendant contends that Apprendi also required that the jury
be allowed to determine whether he had a prior felony drug conviction that raised
the applicable offense statutory maximum under § 841(b)(1)(C) from twenty years
to thirty years, and thus, whether his offense level under the career offender
guideline should have been 32 rather than 34. See USSG § 4B1.1. Defendant
concedes that his argument is foreclosed by Almendarez-Torres as well as by prior
circuit precedent. See United States v. Martinez-Villalva , 232 F.3d 1329, 1332
(10th Cir. 2000). He states he has raised his Apprendi argument in order to
preserve it for further review in the event that the Supreme Court overrules
Almendarez-Torres . Since we are bound by Almendarez-Torres and prior panel
decisions concerning this issue, however, we cannot grant anticipatory relief and
must affirm defendant’s sentence. See United States v. Dorris , 236 F.3d 582, 587
(10th Cir. 2000), cert. denied , 121 S. Ct. 1635 (2001).
-5-
The judgment of the United States District Court for the District of
Colorado is AFFIRMED. E. Richard Toray’s motion to withdraw as defendant’s
counsel is GRANTED. The clerk of court is directed to find and appoint
replacement counsel pursuant to 18 U.S.C. § 3006A within ten days of the entry
of this order and judgment.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-6-