United States v. Woods , 130 F. App'x 645 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4029
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BETH ANN WOODS,
Defendant - Appellant.
No. 04-4097
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTT SHIFFLETT,
Defendant - Appellant.
No. 04-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STACY SHIFFLETT,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-02-19)
Submitted: April 18, 2005 Decided: May 12, 2005
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
David H.N. Bean, Strasburg, Virginia; Eric B. Snyder, BAILEY &
GLASSER, L.L.P., Charleston, West Virginia; David L. Heilberg,
Kimberly T. Randall, MARTIN & RAYNOR, P.C., Charlottesville,
Virginia, for Appellants. John L. Brownlee, United States
Attorney, Craig J. Jacobsen, Assistant United States Attorney,
Roanoke, Virginia; Thomas E. Booth, DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Beth Ann Woods, Stacy
Shifflett and Scott Shifflett appeal their convictions and
sentences. After a trial, the Appellants were convicted of
conspiracy to distribute and possess with intent to distribute more
than 500 grams of methamphetamine and more than 100 kilograms of
marijuana. On appeal, the Shiffletts, who are married to each
other, contend the district court erred by not permitting the jury
during deliberations to have access to tape recorded telephone
calls not played during the trial. All three Appellants claim
their sentences violate the rule announced in United States v.
Booker, 125 S. Ct. 738 (2005). We affirm the convictions and
vacate the sentences and remand for resentencing.
During the course of investigating the drug conspiracy,
law enforcement authorities intercepted and secretly recorded
numerous telephone calls involving members of the conspiracy. Many
of the tape recorded telephone calls were admitted as evidence
during the trial. Some, not all, of the telephone calls were
played for the jury, and transcripts of the calls were provided.
In addition, a member of the conspiracy and one of the participants
in the telephone calls testified as to details in each of the
calls. During deliberations, a juror asked if the unplayed tapes
could be provided to the jury. While the district court noted that
it would provide the tapes if the jury wanted them, it also noted
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that the remaining tapes did not have transcripts and it would be
difficult for the jury to identify the speakers. In addition,
there was no log for the remaining telephone calls. The court
further noted that listening to the remaining tapes would be time
consuming. The juror who made the initial request was persuaded
that the remaining tapes would not be helpful, and the tapes were
not given to the jury.
The Shiffletts contend that the district court erred by
refusing to provide the remaining tape recorded telephone calls to
the jury. In addition, the Shiffletts contend the court improperly
commented on the evidence by stating the jury would “be here
forever” listening to tapes. (J.A. at 1288). The Shiffletts
further contend the court implied the jury need not consider the
unplayed tape recordings in order to reach a verdict.
Because the Shiffletts did not object to the district
court’s actions, we review their claims for plain error.
See United States v. Robinson, 275 F.3d 371, 383 n.4 (4th Cir.
2001); see also United States v. Gantt, 140 F.3d 249, 258 (D.C.
Cir. 1998) (court’s refusal to let jury see all the video tape
recordings was not plain error). In order to demonstrate plain
error, the Shiffletts must show that an error occurred, the error
was plain, and the error affected their substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). Correction of the error
remains within our discretion, which we “should not exercise . . .
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unless the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Id. at 732 (second
alteration in original) (quoting United States v. Young, 470 U.S.
1, 15 (1985)).
We note that the trial transcript does not support the
Shiffletts’ claim that the district court refused to provide the
remaining tapes to the jury. The court on at least two occasions
stated that the jury could have the tapes. Nor does the transcript
support the claim that the district court improperly implied that
the additional tapes would not be helpful in reaching their
verdicts. Furthermore, there is no evidence in the record that the
jury’s failure to review the remaining tape recorded telephone
calls affected the outcome of the proceedings. The Shiffletts do
not claim that the additional tape recordings contained any
exculpatory conversations. Accordingly, we find no reversible
plain error in the district court’s actions.
At sentencing, the Shiffletts and Woods had their offense
levels enhanced based on a quantity of drugs not found by the jury
beyond a reasonable doubt. In addition, Woods’s offense level was
increased for possession of a weapon. The Appellants claim that
their sentences violate the rule announced in Booker. The
Shiffletts preserved this error by arguing that the enhancements to
their offense levels violated the rule announced in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Accordingly, we review the
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Shiffletts’ claim de novo. United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989).
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
Booker, 125 S. Ct. at 746, 750. In this case, the district court
sentenced the Shiffletts under the mandatory federal sentencing
guidelines and applied enhancements for an amount of drugs not
found by the jury beyond a reasonable doubt. Because the
Shiffletts were incorrectly sentenced under the mandatory
guidelines scheme, we vacate the Shiffletts’ sentences and remand
to the district court for a new sentencing hearing consistent with
the rule announced in Booker.
Woods did not object at sentencing to the use of the
guidelines in determining her sentence. Accordingly, we review her
claim for plain error. Like the Shiffletts, Woods was sentenced as
if the guidelines were mandatory. In addition, the court made
factual findings with respect to drug weight and possession of a
handgun.
In United States v. Hughes, 401 F.3d 540 (4th Cir. 2005),
we held that a district court plainly errs by imposing a sentence
under the mandatory federal sentencing guidelines exceeding the
maximum sentence authorized by the facts found by the jury alone.
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Id. at 547. Accordingly, we hold that Woods’s sentence was plainly
erroneous. We vacate Woods’s sentence and remand to the district
court for resentencing.
Accordingly, we affirm the Shiffletts’ convictions and
vacate the Appellants’ sentences and remand for resentencing
consistent with the rule announced in Booker. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART; VACATED
AND REMANDED IN PART
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