United States v. James Lee Trammell, Jr. , 220 F. App'x 945 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 22, 2007
No. 05-16641 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00025-CR-T
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LEE TRAMMELL, JR.
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 22, 2007)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant James Lee Trammell, Jr., appeals his 156-month sentence and 5-
year term of supervised release for drug trafficking offenses, in violation of 21
U.S.C. §§ 841(a)(1) and 846, and firearms offenses, in violation of 18 U.S.C. §
922(a)(6) and (n), imposed upon resentencing. At resentencing,1 the district court
applied a two-level firearm enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1),
because Trammell’s co-conspirators used firearms in furtherance of a drug
trafficking conspiracy, and that use was reasonably foreseeable to Trammell.
Subsequently, Trammell was released from prison and now is serving his term of
supervised release.
Although Trammell contends in his brief that this case is moot, the
government disagrees because the record contains no indication that the district
court would necessarily deny a motion for early termination of supervised release,
if we determine in this appeal that Trammell’s sentence was excessive.
After reviewing the record and reading the parties’ briefs, we agree with the
government that the sentencing issue raised in Trammell’s appeal is not moot
because Trammell is still serving a term of supervised release, which the district
court could modify or terminate if Trammell is successful in this appeal. See
1
In an earlier appeal, we affirmed Trammell’s conviction and sentence. United States v.
Trammell, 107 F.3d 23 (11th Cir. 1997). In a subsequent section 2255 motion, however, Trammell
successfully argued that his counsel was ineffective for failing to challenge on appeal the quantity
of cocaine attributable to him at sentencing, and for failing to challenge the timeliness of the
government’s notice of its intent to rely upon prior felony drug convictions for enhancement
purposes. As a result, Trammell’s sentences as to the conspiracy and distribution counts (counts 1
and 24) were vacated.
2
Dawson v. Scott, 50 F.3d 884, 886 n. 2 (11th Cir. 1995); United States v. Page, 69
F.3d 482, 487 n. 4 (11th Cir. 1995); United States v. Castro-Rocha, 323 F.3d 846,
847 n. 1 (10th Cir. 2003). Because we conclude that this case is not moot, we must
address the merits of Trammell’s appeal.
“The district court’s interpretation of the sentencing guidelines is subject to
de novo review on appeal, while its factual findings must be accepted unless
clearly erroneous.” United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir.), cert.
denied, 126 S. Ct. 812 (2005).
The record in this case demonstrates that at resentencing, the district court
agreed with the government’s contention that co-conspirator McCauley’s
conviction for using and carrying a firearm during and in connection with a drug
trafficking crime was sufficient to warrant the two-point enhancement against
Trammel pursuant to U.S.S.G. § 2D1.1(b)(1). Specifically, the district court found
that the facts presented at trial met this court’s requirements for the enhancement
because (1) McCauley was a co-conspirator; (2) McCauley’s possession of a
firearm was in furtherance of the conspiracy; (3) Trammell was a member of the
conspiracy at the time of possession; and (4) McCauley’s possession was
reasonably foreseeable by Trammell. United States v. Trammell, 385 F. Supp. 2d
1215, 1227-28 (M.D. Ala. 2005) (citing United States v. Gallo, 195 F.3d 1278,
3
1284 (11th Cir 1999)).
We conclude from the record that Trammell has not presented any facts that
could undermine the district court’s finding that a preponderance of the evidence
supported the enhancement, a factual finding that must be accepted unless clearly
erroneous. United States v. Jordi, 418 F.3d at 1214. Accordingly, we affirm the
district court’s application of the sentencing enhancement.
AFFIRMED.
4