United States v. Tanisha Crissy Taylor , 135 F. App'x 384 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 17, 2005
No. 04-14012 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-20147-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TANISHA CRISSY TAYLOR,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 17, 2005)
Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Tanisha Crissy Taylor appeals her sentence of 60 months imprisonment,
imposed following her guilty plea for conspiracy to import 500 grams or more of
cocaine, in violation of 21 U.S.C. § 963. On appeal, she challenges the court’s
determination of the amount of drugs for which she should be held responsible.1
Taylor pleaded guilty to one count of conspiracy to import cocaine.2 At the
change of plea hearing, the government made the following factual proffer: Taylor
and her sister-in-law Arlene Melara were traveling together as passengers on a
cruise ship. Upon arrival in Miami, both were selected for secondary customs
inspections. Customs officials discovered an object visible at Melara’s crotch,
which contained a white powdery substance that tested positive for cocaine. A
patdown search of Taylor revealed the tip of a hard object concealed in her crotch,
which contained a white powdery substance that tested positive for cocaine. The
total amount of drugs was 942.6 grams. After arrest, Taylor and Melara admitted
that they had been traveling with Taylor’s husband (Melara’s brother) to Jamaica,
1
Notably, Taylor did not raise in the district court, in her initial brief, nor in a motion to file
a supplemental brief a constitutional challenge to the calculation of her sentence under the Federal
Sentencing Guidelines. As such, any possible claim based on the U.S. Supreme Court’s recent
decisions in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___(2005), and
Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), arguably has been
abandoned. See United States v. Stinson, 97 F.3d 466, 470 n.2 (11th Cir. 1996) (declining to reach
an issue that the defendant abandoned by not raising it in his initial brief); United States v. Curtis,
380 F.3d 1308, 1310-11 (11th Cir. 2004) (denying leave to file a supplemental brief based on
Blakely where issue is raised for first time in such brief); United States v. Padilla-Reyes, 247 F.3d
1158, 1164 (11th Cir. 2001) (holding, in the context of Apprendi v. New Jersey, 530 U.S. 466(2000), that a defendant “cannot properly raise new issues at supplemental briefing, even if the issues
arise based on intervening decisions or new developments cited in supplemental authority”).
2
The plea agreement did not contain an appeal waiver provision.
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where they were approached in a bar by a man who offered them $5,000 to
transport cocaine into the United States. The two agreed to carry the drugs, and
they arranged for delivery by telling the man what they would be wearing when
they disembarked in Miami. Taylor agreed that the factual proffer was correct and
she entered a guilty plea, which the court accepted.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base offense level of 26 under U.S.S.G. § 2D1.1(c)(7) because the
offense involved between 500 grams and 2 kilograms of cocaine. The offense
required a statutory mandatory minimum sentence of 60 months imprisonment.
Taylor objected to the PSI, asserting, inter alia, that she was not responsible
for more than 500 grams of cocaine. Taylor argued that she acted independently
of Melara, that they did not pool their resources and they did not agree to split the
profits.
At sentencing, the court overruled Taylor’s objection to the base offense
level because Taylor had pleaded guilty to conspiracy to import 500 grams or
more, she knew she faced a mandatory minimum sentence based on the amount of
drugs, and she agreed with the government’s proffer that she conspired to import
500 grams or more. The court adopted the PSI’s factual statements and calculated
the guidelines range of 37 to 46 months imprisonment, but noted that Taylor faced
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a mandatory minimum sentence. The court then stated, “[b]ased upon the
quantity, even if at some point in time it is determined that the overall scheme of
the guidelines is unconstitutional, a position frankly which I do not concur despite
certain reports, this would offer no relief to Ms. Taylor because of the mandatory
minimums.” The court further indicated that the mandatory minimum sentence
was appropriate.
Whether the district court misapplied U.S.S.G. § 1B1.3 is a purely legal
question that we review de novo. United States v. McCrimmon, 362 F.3d 725,
728 (11th Cir. 2004). Whether a co-conspirators actions were reasonably
foreseeable is a question of fact reviewed for clear error. United States v. Cover,
199 F.3d 1270, 1274 (11th Cir. 2000).
Criminal defendants may be held liable for the reasonably foreseeable
actions of their co-conspirators. United States v. Pringle, 350 F.3d 1172, 1175-76
(11th Cir. 2003); United States v. Diaz, 248 F.3d 1065, 1099 (11th Cir. 2001)
(citing United States v. Bell, 137 F.3d 1274, 1275 (11th Cir.1998). With respect
to sentencing, U.S.S.G. § 1B1.3(a)(1)(B) requires that “in the case of a jointly
undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with others, whether or not charged as a
conspiracy), all reasonably foreseeable acts and omissions of others in furtherance
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of the jointly undertaken criminal activity” should be taken into account in
calculating the defendant’s appropriate sentence. Pringle, 350 F.3d at 1176 (citing
United States v. Gallo, 195 F.3d 1278, 1281 (11th Cir.1999) (emphasis added)).
To determine relevant conduct under § 1B1.3, the court engages in a two-step
analysis: first, the court must determine the scope of the criminal activity. Second,
the court must address whether the conduct was reasonably foreseeable. United
States v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003).
Here, the district court properly determined that Taylor was responsible for
the entire amount of drugs. First, the court confirmed that Taylor and Melara
engaged in a conspiracy to import more than 500 grams of cocaine. Thus, the
district court properly determined the scope of the criminal activity. U.S.S.G.
§ 1B1.3, comment. (n.2); Cf., Hunter, 323 F.3d at 1320 (remanding for
resentencing when the district court did not make specific findings of the scope of
the conspiracy). Additionally, Taylor pleaded guilty to conspiracy to import 500
grams or more, and the district court properly accepted the facts as admitted by
Taylor. See United States v. Saunders, 318 F.3d 1257, 1271 (11th Cir. 2003).
Second, Taylor is responsible for the amount carried by codefendant Melara
because the drugs were reasonably foreseeable as part of a jointly undertaken
criminal activity. The two were traveling together, were hired by the same man at
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the same time, received their drugs together and coordinated the importation by
deciding what clothes to wear when they arrived in Miami. Additionally, they
coordinated how to go through customs to reduce the chances of being caught.
See U.S.S.G. § 1B1.3 comment. (n.2(c)(8)) (addressing relevant conduct where
defendants received drug shipments from same supplier at the same time and
coordinated efforts to cross the border).
Therefore, given these facts, the district court properly determined that
Taylor was responsible for more than 500 grams of cocaine.
Accordingly, we AFFIRM.
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