United States v. Cory Lamont Carroll , 133 F. App'x 710 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2005
No. 04-14116 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00020-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORY LAMONT CARROLL,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 6, 2005)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Appellant pled guilty to possession of a firearm by a convicted felon, a
violation of 18 U.S.C. § 922(g)(1), and the court sentenced him to prison for a
term of 70 months. He now appeals his sentence, contending that Blakely v.
Washington, 542 U.S. ___, 124 S.Ct. 2531 (2004), and the Sixth Amendment
precluded the district court from enhancing his offense level based on a fact that
he did not admit as true. In United States v. Booker, 543 U.S. ___, 125 S.Ct. 738,
(2005), the Supreme Court made Blakely’s rationale applicable to the Sentencing
Guidelines.
The presentence report (PSI) set appellant’s base offense level at 20
pursuant to U.S.S.G. § 2K2.1(a)(4), and, based on information provided by the
ATF—that the firearm appellant possessed had been stolen—the report added two
points to the base offense level pursuant to U.S.S.G. § 2K2.1(b)(4). Citing
Blakely, appellant objected to this upward adjustment on the ground that he had
not admitted, and would not admit, that the firearm was stolen. The ADDENDUM
to the PSI noted the objection. Appellant repeated his Blakely objection at the
sentencing hearing, Record, Vol. 2 at 2, and the court noted that he had
“preserved [the objection] for appeal.” Id. At 3.
United States v. Davis, 2005 WL 1033422 (11th Cir. (Ga.)), teaches that “we
[must] reverse [the defendant’s sentence] and remand [the case for resentencing]
unless the Government can demonstrate that the error was harmless beyond a
reasonable doubt . . . that the error complained of did not contribute to the
sentence.” Id. In this case, the Guidelines sentence range–-including the
2
challenged two-level upward adjustment—called for a term of imprisonment of 63
to 78 months; appellant’s sentence falls one month below the midpoint of this
range. The sentencing transcript informs us that the Blakely/Booker error did not
contribute to the sentence in this case. After taking appellant’s considerable
criminal history into account, the court stated: “I have imposed the sentence
because I do believe, under all the facts and the history, this whole situation, that
this meets the sentence objective of punishment, deterrence and incapacitation.”
Record, Vol. 2 at 12. Although the court did not cite 18 U.S.C. § 3553(a)(2), its
sentence reflected the sentencing purposes § 3553(a)(2) sets forth, i.e., the very
sentencing purposes the court would have to consider anew if we vacated
appellant’s sentence and remanded the case for resentencing.
AFFIRMED.
3