United States v. Byron Bryan , 136 F. App'x 257 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 10, 2005
No. 04-15049
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 03-00073-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
BYRON BRYAN,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Middle District of Florida
_________________________
(June 10, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
The government appeals Byron Bryan’s 121-month sentence for conspiracy
to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846, and possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C).
Sentencing took place before the Supreme Court announced United States v.
Booker, 543 U.S.___, 125 S. Ct. 738 (2005).1 At sentencing, the district court
concluded that it did not have the constitutional authority to enhance Bryan’s
sentence based upon a quantity of drugs that exceeded the quantity contained in
the indictment in light of Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004). The government objected at sentencing and argues that
the district court erred by extending Blakely to the Sentencing Guidelines and
refusing to enhance Bryan’s sentence based on the sentencing guidelines even
though the court decreased Bryan’s sentence based upon a reduction for
acceptance of responsibility pursuant to the guidelines.
In Booker, the Supreme Court held that the mandatory nature of the Federal
Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. Booker, 543 U.S. at ___, 125 S.Ct. at 749-52.
In a second and separate majority opinion, the Court in Booker concluded that, to
1
Both parties’ briefs in this appeal were filed prior to the Supreme Court’s recent decision
in Booker. Therefore, we requested and received supplemental briefing on the effect of Booker.
2
best preserve Congress’s intent in enacting the Sentencing Reform Act of 1984,
the appropriate remedy was to “excise” two specific sections—18 U.S.C.
§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)
and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de
novo review of departures from the applicable guideline range)—thereby
effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125
S.Ct. at 764. The Supreme Court noted, however, that courts must continue to
consult the Guidelines, together with the factors listed in 18 U.S.C. § 3553(a).2 Id.The Court further indicated that both its “Sixth Amendment holding and . . .
remedial interpretation of the Sentencing Act” must be applied to “all cases on
direct review.” Id. at ___, 125 S.Ct. at 769.
One of Booker’s two defendants, Ducan Fanfan, was sentenced based upon
the district court’s partial application of the Guidelines. Booker, 543 U.S. at ___,
125 S.Ct. at 747. Specifically, the district court in Fanfan’s case refused to apply
enhancements for additional drug quantities exceeding the quantities contained in
the indictment or in the jury’s verdict, or for Fanfan’s role in the offense, but did
2
These factors include, inter alia, the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for adequate deterrence, protection of the public, the
pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing
disparities. See 18 U.S.C. § 3553(a).
3
apply other provisions of the Guidelines that it found did not implicate the Sixth
Amendment. Id. The Supreme Court held that Fanfan’s sentence did not violate
the Sixth Amendment because it did not exceed the sentence authorized by the
jury’s verdict. Id. at ___, 124 S.Ct. at 769. Nevertheless, the Court vacated
Fanfan’s sentence to allow the government to seek resentencing consistent with
Booker. Id.Because the district court erred in light of Blakely and Booker by failing to
properly calculate and consider the advisory Sentencing Guidelines range, we
vacate and remand Bryan’s sentence to the district court for resentencing
consistent with Booker.3
Upon careful review of the sentencing transcript and the presentence
investigation report, and upon consideration of the parties’ briefs, we find
reversible error.
VACATED AND REMANDED.
3
Bryan does not argue that the Booker error was harmless, but rather urges this Court
to ignore the error and simply review for reasonableness. However, “once the court of appeals has
decided that the district court misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error
did not affect the district court's selection of the sentence imposed.” Williams v. United States, 503
U.S. 193, 203, 112 S.Ct. 1112, 1120-21 (1992).
4