United States v. Stanley Lawes , 179 F. App'x 615 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-15565 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 4, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 00-14056-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY GEORGE LAWES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 4, 2006)
Before ANDERSON, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Stanley Lawes appeals his 168-month sentence, which was imposed after he
pled guilty to possessing with intent to distribute 50 grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Lawes argues that the
district court erred by (1) sentencing him under a mandatory Guidelines scheme, in
violation of United States v. Booker, 543 U.S. 220 (2005); and (2) relying on prior
convictions, which were neither charged in the indictment nor found by a jury, to
enhance his sentence.1 After careful review, we affirm.
The relevant facts are straightforward. On August 31, 2000, Lawes was
indicted for possession with intent to distribute more than 50 grams of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) (Count 1). At his arraignment before a
magistrate judge, Lawes pled not guilty. He subsequently changed his plea to
guilty, pursuant to a written plea agreement with the government, and proceeded to
sentencing.
According to the presentence investigation report (“PSI”), Lawes sold 55.3
grams of cocaine base to a confidential source working with Drug Enforcement
Administration (“DEA”). Based on this amount of cocaine base, the PSI calculated
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We reject Lawes’s additional argument that the district court erred by granting only a
horizontal downward departure and denying his request for an additional vertical downward
departure based on alleged over-representation of the seriousness of his prior crimes. Our review
of the record reveals no indication that the district court thought it lacked authority to grant the
departure. Accordingly, we will not review the denial of Lawes’s requested vertical departure. See
United States v. Anderson, 326 F.3d 1319, 1333 (11th Cir. 2003) (“A defendant may not ordinarily
appeal a district court’s refusal to grant a downward departure. Where the court erroneously
believed that it lacked the authority to grant the downward departure, however, the defendant may
appeal the court’s failure to downward depart” (emphasis added)); United States v. Smith, 289 F.3d
696, 710-11 (11th Cir. 2002) (holding that departure based upon the over-representation of a
defendant’s criminal history must proceed under U.S.S.G. § 4A1.3 and not U.S.S.G. § 5K2.0;
“downward departures under U.S.S.G. § 4A1.3 must be on the horizontal axis, reflecting the
offender’s criminal history category, and not on the vertical axis, reflecting his offense level”).
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a base offense level, pursuant to U.S.S.G. § 2D1.1(a)(3), of 32. The PSI then
recommended a career-offender enhancement, pursuant to U.S.S.G. § 4B1.1,
because the instant offense was a controlled-substance felony offense and Lawes
had at least two prior controlled-substance felony convictions. After a 3-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b),
Lawes’s adjusted offense level was 34.
In calculating Lawes’s criminal history category, the PSI included a
description of the two prior controlled-substance felony convictions that qualified
Lawes for the career-offender enhancement under § 4B1.1. The PSI further noted
that Lawes had a total of two criminal history points, which normally would accord
him a criminal history category of II. But the PSI recommended, based on Lawes’s
career-offender status, a criminal history category VI. Lawes faced a mandatory
minimum sentence of ten years’ imprisonment and a maximum of life
imprisonment under 21 U.S.C. § 841(b)(1)(A). The Guidelines range was 262-327
months’ imprisonment.
Lawes objected to the enhanced criminal history category of VI, arguing that
it significantly over-represented the seriousness of his criminal history or the
likelihood that he would commit further crimes. He also objected to the PSI’s
failure to recommend a downward departure because the enhanced sentence was
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not in furtherance of an allowable purpose under 18 U.S.C. 3553(a). At the
subsequent sentencing hearing, he also asserted he was entitled to an additional
downward departure based on his limited education and minimal criminal record.
The government agreed with Lawes’s argument that a category VI overstated his
criminal history, but objected to Lawes’s suggestion that he was entitled to a
criminal history category I. In response to these arguments, the district court
observed that there were “strong arguments to be made that no horizontal departure
[was] appropriate” and that the government was being “benevolent” in not
opposing it.
Regarding Lawes’s request for a § 5K2 departure, the court denied it,
finding that the instant case was not outside the heartland and stating that “it’s a
fairly typical case. Unfortunately, by operation of law and the guidelines, the
sentence is very harsh, which is causing all of us to pause to some extent.” The
court also addressed Lawes’s objection that a category VI over-represented his
criminal history. The district court first noted that it had discretion to depart
horizontally across the criminal history category. Based on its determination that a
category VI was not appropriate, and considering the pattern and timing of
Lawes’s previous convictions, the district court departed to a category II criminal
history. In deciding against departing to a category I criminal history, the court
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commented that, “[c]ategory one, where someone has no previous criminal
offenses, is sort of inconsistent with the whole career criminal concept.” The court
further explained that “though still harsh, a category two would adequately
represent the Defendant’s criminal history over a lengthy period of time.”
After the foregoing adjustments to Lawes’s criminal history category, the
district court calculated a new Guidelines range of 168 to 210 months. The district
court stated that “[b]ased on the lengthy sentence afforded by the guideline range,
the Court will impose a sentence at the bottom of the range.” The court then
sentenced Lawes to a 168-month term of imprisonment followed by a 5-year term
of supervised release. This appeal followed.
Because Lawes raises his Booker claim for the first time on appeal, our
review is for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir.), cert. denied, 125 S.Ct. 2935 (2005). In order for us to correct plain
error: (1) there must be error, (2) the error must be plain, and (3) the error must
affect substantial rights. Id. “If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted). Under the third prong, the appellant bears
the burden to show that the error “affected substantial rights, which almost always
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requires that the error must have affected the outcome of the district court
proceedings. The standard for showing that is the familiar reasonable probability
of a different result formulation, which means a probability sufficient to undermine
confidence in the outcome.” Id. at 1299 (alteration and quotations omitted).
“[W]here the effect of an error on the result in the district court is uncertain or
indeterminate–where we would have to speculate–the appellant has not met his
burden of showing a reasonable probability that the result would have been
different but for the error . . . .” Id. at 1301.
In United States v. Shelton, we recognized that there are two types of
Booker error: (1) the Sixth Amendment “constitutional” error of using judge-found
facts to increase a defendant’s sentence under a mandatory guideline system; and
(2) the “statutory” error of applying the Guidelines as mandatory, as opposed to
advisory. 400 F.3d 1325, 1329-31 (11th Cir. 2005). Lawes asserts that both types
of Booker error occurred here.
First, after calculating the new Guidelines range, the district court committed
statutory Booker error by applying the Guidelines in a mandatory fashion. But in
order to prove that the error affected his substantial rights under the third prong of
plain-error review, a defendant must demonstrate “a reasonable probability of a
different result if the guidelines had been applied in an advisory instead of binding
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fashion by the sentencing judge in this case.” United States v. Rodriguez, 398 F.3d
1291, 1301 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Where “[t]he record
provides no reason to believe any result is more likely than the other,” a defendant
cannot prevail under plain-error review. Id.Here, Lawes does not point to anything in the record that would satisfy his
burden of showing a reasonable probability that he would have received a lesser
sentence had he been sentenced under an advisory scheme. While the district court
stated that Lawes’s criminal history resulted in a “lengthy” sentence under the
Guidelines, the court did not say, or in any way imply, that it was inclined to
impose a lower sentence if not bound by the Guidelines. Moreover, at no point
during the proceedings did the court mention that the lengthy sentence was tied in
any way to the mandatory nature of the Guidelines. Simply put, Lawes has not
demonstrated a reasonable probability of a lesser sentence under an advisory
system. Accordingly, the district court did not commit reversible plain error under
the statutory component of Booker.
We also reject Lawes’s argument that the district court erred when it
imposed sentence pursuant to the career-offender provisions by relying on prior
convictions that were neither charged in the indictment nor found by a jury. As
Lawes acknowledges, we have held that a district court does not commit Booker
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constitutional error when it applies a career-offender enhancement based on
previous convictions, pursuant to Almendarez-Torres v. United States, 523 U.S.
224 (1998), which remains binding on this Court.
In Almendarez-Torres, the Supreme Court held that “[a]n indictment must
set forth each element of the crime that it charges [,b]ut it need not set forth factors
relevant only to the sentencing of an offender found guilty of the charged crime.”
Id. at 228 (citation omitted). Before Booker, we held that Almendarez-Torres
remained good law. United States v. Marseille, 377 F.3d 1249, 1257-58, n.14
(11th Cir.), cert. denied, 543 U.S. 1013 (2004). And after Booker, we observed
that Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker,”
and that “a district court does not err by relying on prior convictions to enhance a
defendant’s sentence.” Shelton, 400 F.3d at 1329. Because the Supreme Court has
not overruled Almendarez-Torres, the district court did not err when it applied the
U.S.S.G. § 4B1.1 career-offender enhancement, relying on two prior qualifying
convictions that were neither alleged in the indictment nor proven to a jury.
AFFIRMED.
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