United States v. Shaw ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4649
DARONNE SHAW, a/k/a Ronne, a/k/a
Gerome,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-99-383)
Argued: September 26, 2002
Decided: December 16, 2002
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Motz and Judge Gregory joined.
COUNSEL
ARGUED: Parks Nolan Small, Federal Public Defender, Columbia,
South Carolina, for Appellant. Mark C. Moore, Assistant United
States Attorney, Columbia, South Carolina, for Appellee. ON
BRIEF: Scott N. Schools, United States Attorney, Alfred W. Bethea,
Jr., Assistant United States Attorney, Florence, South Carolina, for
Appellee.
2 UNITED STATES v. SHAW
OPINION
TRAXLER, Circuit Judge:
Pursuant to a written plea agreement, appellant Daronne Shaw
pleaded guilty to conspiracy to distribute and to possess with intent
to distribute cocaine base. The district court determined that Shaw’s
sentencing range under the United States Sentencing Guidelines was
360 months to life imprisonment, but then departed downward and
imposed a 240-month sentence. On appeal, Shaw contends that the
district court violated § 5G1.1 of the Guidelines by using a sentencing
range of 360 months to life imprisonment, instead of the 240-month
statutory maximum, as his starting point for a downward departure.
For the reasons that follow, we affirm his sentence.
I.
On April 14, 1999, state and federal law enforcement agents set up
a controlled purchase of five grams of crack cocaine from Shaw
through a confidential informant. Shaw was arrested immediately
after the exchange of drugs and money, and he was charged with con-
spiracy to distribute and to possess with intent to distribute crack as
part of a drug trafficking operation in South Carolina’s Florence and
Williamsburg Counties. See 21 U.S.C.A. §§ 841(a)(1), 846 (West
1999). He was also charged with possession with intent to distribute.
See 21 U.S.C.A. § 841(a)(1). The indictment did not specify the quan-
tity of drugs involved in either offense.
Shaw entered into a written plea agreement pursuant to which he
agreed to plead guilty to the conspiracy charge and the government
agreed to drop the possession with intent to distribute charge. Under
the terms of the plea agreement, Shaw stipulated that the amount of
cocaine base involved in his offense exceeded 1.5 kilograms and
agreed that such quantity would yield an applicable base offense level
of 38 under § 2D1.1 of the Sentencing Guidelines.1 See U.S.S.G.
§ 2D1.1(c)(1) (assigning a base offense level of 38 for "1.5 KG or
1
The November 1, 1998, Guidelines apply in this case because they
were in effect in August 2000 when Shaw was sentenced. See U.S.S.G.
§ 1B1.11(a).
UNITED STATES v. SHAW 3
more of Cocaine Base"). The plea agreement also provided that if
Shaw provided substantial assistance to authorities in the investiga-
tion or prosecution of others, the government would move for a
downward departure pursuant to § 5K1.1 of the Guidelines. See
U.S.S.G. § 5K1.1 (permitting the sentencing court to depart "[u]pon
motion of the government stating that the defendant has provided sub-
stantial assistance in the investigation or prosecution of another per-
son who has committed an offense"). At the plea hearing, the court
advised Shaw, based on the amount of drugs involved, that he was
facing a potential life sentence. Shaw indicated that he understood the
stipulation as to quantity and that he was facing a maximum sentence
of life imprisonment.
The presentence investigation report ("PSR") submitted to the dis-
trict court advised that the conspiracy involved at least 3.05 kilograms
of crack cocaine, which resulted in a base offense level of 38. The
PSR recommended an upward adjustment of two levels because Shaw
was an "organizer, leader, manager, or supervisor" in the conspiracy.
See U.S.S.G. § 3B1.1(c). The PSR also recommended a three-level
downward adjustment for acceptance of responsibility under § 3E1.1.
The PSR thus settled upon an adjusted offense level of 37. The dis-
trict court adopted the PSR’s recommended adjustments as well as its
conclusion that the total offense level was 37. Shaw’s extensive crim-
inal record placed him in criminal history category VI, resulting in a
sentencing range of 360 months to life imprisonment.
At the sentencing hearing in August 2000, the district court
afforded Shaw an opportunity to object to the proposed sentencing
range of 360 months to life, but Shaw voiced no objection. The gov-
ernment then moved for a downward departure based on the substan-
tial assistance provided by Shaw to the government in its
investigation and prosecution of certain major suppliers in Shaw’s
drug trafficking ring. See U.S.S.G. § 5K1.1. The court granted the
motion, departed downward, and imposed a sentence of 240 months
in prison and five years of supervised release. Shaw then filed this
appeal.
II.
Ordinarily, our ability to review a district court’s decision whether,
and to what extent, to depart downward from the sentence required
4 UNITED STATES v. SHAW
by the Guidelines is fairly circumscribed. We are not permitted to
review a district court’s refusal to depart downward from the Sentenc-
ing Guidelines unless "the district court was under the mistaken
impression that it lacked the authority to depart." United States v.
Carr, 303 F.3d 539, 545 (4th Cir. 2002) (internal quotation marks
omitted). Likewise, we do not have the authority to review the extent
to which a district court departs downward unless "the departure deci-
sion resulted in a sentence imposed in violation of law or resulted
from an incorrect application of the Guidelines." United States v. Hill,
70 F.3d 321, 324 (4th Cir. 1995). In this case, the district court
granted a substantial downward departure from 360 months, the bot-
tom of Shaw’s sentencing range as determined by the district court,
to 240 months. Shaw’s complaint is that the district court failed to fol-
low § 5G1.1 of the Guidelines, which dictated a sentencing range of
240 months, and thereby deprived him of the benefit of his downward
departure because any departure should have started, not ended, at
240 months. Essentially, then, Shaw is raising a challenge to the
extent of his departure. We may review Shaw’s challenge because his
position is premised on the theory that the district court misapplied
the Guidelines. See id.
Under the Sentencing Guidelines, "[w]here the statutorily autho-
rized maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence shall be
the guideline sentence." U.S.S.G. § 5G1.1(a). As we noted earlier, the
district court determined that Shaw’s sentencing range under the
Guidelines was 360 months to life. Shaw argues that because the
indictment failed to charge a specific amount of crack in connection
with the offenses, the maximum sentence authorized by statute was
lower than the guideline range.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme
Court held that "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reason-
able doubt." Thus, after Apprendi, an indictment charging a conspir-
acy to distribute an unspecified quantity of drugs in violation of
§ 841(b)(1)(C) exposes the defendant to a maximum sentence of 240
months in prison. See United States v. Promise, 255 F.3d 150, 156
(4th Cir. 2001) (en banc), cert. denied, 122 S. Ct. 2296 (2002); United
UNITED STATES v. SHAW 5
States v. Angle, 254 F.3d 514, 518 (4th Cir.) (en banc), cert. denied,
122 S. Ct. 309 (2001). Shaw contends that § 5G1.1 required the dis-
trict court to use 240 months, the statutory maximum, as the sentenc-
ing range because it was "less than the minimum of the applicable
guideline range" of 360 months to life. U.S.S.G. § 5G1.1. According
to Shaw, the significant reduction he received in his sentence for the
substantial assistance he gave the government was meaningless since
he could not have received a sentence of greater than 240 months in
any event. Thus, Shaw asks us to return this matter to the district
court for it to reconsider the government’s downward departure
motion in light of the proper sentencing range which would require
the sentencing court to start at 240 months, not 360 months, before
departing downward under § 5K1.1.
Because Shaw did not raise this objection below, our review is for
plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993). In order to establish plain error, Shaw must
demonstrate "that an error occurred, that the error was plain, and that
the error affected his substantial rights." United States v. Hastings,
134 F.3d 235, 239 (4th Cir. 1998). Even if Shaw establishes all three
requirements, "correction of the error remains within our sound dis-
cretion, which we should not exercise unless the error seriously
affects the fairness, integrity or public reputation of judicial proceed-
ings." Id. (internal quotation marks and alterations omitted).
We agree with Shaw that 240 months was the applicable guideline
sentencing range by operation of § 5G1.1(a), and that, as a result, 240
months should have served as the starting point for any downward
departure the district court exercised its discretion to grant. See
U.S.S.G. § 5G1.1 comment. ("This section describes how the statu-
torily authorized maximum sentence . . . may affect the determination
of a sentence under the guidelines. For example, if the applicable
guideline range is 51-63 months and the maximum sentence autho-
rized by statute for the offense of conviction is 48 months, the sen-
tence required by the guidelines . . . is 48 months; a sentence of less
than 48 months would be a guideline departure." (emphasis added)).
For all practical purposes, the government concedes that the district
court plainly erred in its determination that Shaw’s sentencing range
was 360 months to life, and assumes for the sake of argument that the
6 UNITED STATES v. SHAW
error affected Shaw’s substantial rights. Relying on United States v.
Cotton, 122 S. Ct. 1781 (2002), the government nevertheless contends
that even if Shaw were able to satisfy the first three plain error
requirements, the error is not one that would affect "the fairness,
integrity or public reputation of judicial proceedings." Hastings, 134
F.3d at 239 (internal quotation marks omitted).
In Cotton, the Supreme Court considered whether plain error could
be established where the defendants received sentences of greater
than 240 months on a charge of conspiracy to distribute a "detectable"
quantity of cocaine and cocaine base. Because the evidence was
"overwhelming and essentially uncontroverted" that the conspiracy
involved a quantity of drugs that was greater than the threshold
amount required for a maximum sentence of life imprisonment, the
Court held that "there was no basis for concluding that the error seri-
ously affected the fairness, integrity or public reputation of judicial
proceedings." 122 S. Ct. at 1786 (internal quotation marks and alter-
ation omitted). Instead, "[t]he real threat" to the judicial process
"would be if respondents, despite the overwhelming and uncontro-
verted evidence that they were involved in a vast drug conspiracy,
were to receive a sentence prescribed for those committing less sub-
stantial drug offenses because of an error that was never objected to
at trial." Id. at 1787. Given this analysis, the Court declined to address
whether the error was one that would affect substantial rights.
Unlike the defendants in Cotton, Shaw pleaded guilty and stipu-
lated to the amount of drugs involved in the conspiracy — no less
than 1.5 kilograms of cocaine base. This amount, of course, exceeds
the 50-gram threshold required to expose Shaw to a life sentence. See
21 U.S.C.A. § 841(b)(1)(A)(iii). Because Shaw actively agreed that
he conspired to distribute this quantity of crack, he is assuredly in a
worse position than the Cotton defendants, who merely failed to chal-
lenge the district court’s determination that the threshold quantity was
involved. See Cotton, 122 S. Ct. at 1786 n.3. Shaw’s stipulation pro-
vided an "uncontroverted" quantity that was sufficient to subject
Shaw to a potential life sentence.
In light of the overwhelming and uncontroverted amount of crack
cocaine that Shaw admits in connection with his offense, as well as
the fact that Shaw’s sentence did not exceed that maximum allowed
UNITED STATES v. SHAW 7
for an offense based on drug quantities not alleged in the indictment
or proven to a jury,2 we conclude that any error here is not one that
we will exercise our discretion to correct because it does not impugn
the fairness, integrity, or public reputation of judicial proceedings. See
United States v. Minore, 292 F.3d 1109, 1120 (9th Cir. 2002)
("Minore unequivocally admitted in his plea agreement, during his
plea colloquy and at his sentencing hearing that he should be held
responsible for the first two loads of marijuana. Those first two trans-
actions involved 19,500 pounds (8845 kilograms) of marijuana—a
quantity far greater than the 1000 kilograms required to expose
Minore to a statutory maximum sentence of life in prison. Because
overwhelming evidence existed that Minore trafficked in drug quanti-
ties well in excess of those necessary to expose him to a potential life
sentence, it is not unfair to hold him to his guilty plea." (footnote
omitted)); United States v. Wallace, 276 F.3d 360, 369 (7th Cir.), cert.
denied, 122 S. Ct. 2592 (2002) (holding that fourth Olano prong was
not satisfied in a case where the sentencing court failed to advise the
defendant that the government had to prove drug quantity to a jury
beyond a reasonable doubt because the defendant admitted quantity
"under oath, both in his stipulation of facts and during the plea collo-
quy, and conceded at sentencing that the government could prove [the
quantity] beyond a reasonable doubt"); United States v. Perez, 270
F.3d 737, 740 (8th Cir. 2001), cert. denied, 122 S. Ct. 1336 (2002)
(failure to advise defendant at plea taking that jury must decide drug
quantity did not seriously undermine the fairness, integrity or public
reputation of the proceeding where defendant agreed he was responsi-
ble for sufficient quantities to subject him to enhanced punishment
under § 841(b)(1)(B)).
2
Although we have previously held that the imposition of a 240-month
sentence does not generate an Apprendi error, see Angle, 254 F.3d at 518("Because Angle’s sentence of 210 months is less than the maximum
penalty authorized by the facts found by the jury (240 months, see 21
U.S.C.A. § 841(b)(1)(C)), there was no error."), the government does not
suggest that the district court properly applied the Guidelines to Shaw’s
case because the sentence imposed did not exceed the statutory maxi-
mum. See United States v. Piccolo, 282 F.3d 41, 44 (1st Cir. 2002).
Rather, the district court here ended up at 240 months in spite of
Apprendi, not because of it.
8 UNITED STATES v. SHAW
In sum, had the district court imposed a sentence of 360 months (or
greater) under these circumstances, we would not have exercised our
discretion to notice and correct the error. And, because we would not
have corrected the imposition of a 360-month sentence in this context,
we certainly cannot say that the district court committed plain error
requiring correction in merely using 360 months as the starting point
for Shaw’s substantial assistance downward departure.
III.
For the foregoing reasons, we affirm Shaw’s conviction and sen-
tence.
AFFIRMED