United States v. Smalls , 134 F. App'x 609 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRANCE L. SMALLS, a/k/a T,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-98-322)
Argued: March 18, 2005 Decided: June 14, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Andrew J. Savage, III, SAVAGE & SAVAGE, Charleston, South
Carolina, for Appellant. Robert Hayden Bickerton, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr.,
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In 1999, appellant Terrance L. Smalls pleaded guilty in
the District of South Carolina to separate felony offenses of drug
possession and conspiracy. Despite Smalls’s plea agreement
obligation to be “fully truthful and forthright” concerning the
Government’s investigation into illegal drug trafficking and other
unlawful activities, Smalls failed to inform the authorities of a
1994 drug-related murder in which he had participated. The court
sentenced Smalls to forty years of imprisonment after applying the
murder cross-reference provided for in § 2D1.1(d)(1) of the United
States Sentencing Guidelines. On appeal, Smalls urges, inter alia,
that we vacate his sentence because the court erroneously
considered his post-plea admissions about the murder, in
contravention of the Fifth and Sixth Amendments, and otherwise
based his sentence on judge-found facts, in violation of the Sixth
Amendment. As explained below, we reject Smalls’s contention on
the sentencing court’s consideration of his post-plea admissions.
In light of United States v. Booker, 125 S. Ct. 738 (2005), and its
progeny, however, we vacate his sentence and remand.
I.
Smalls was involved in a drug-trafficking organization
that operated in the Burton area of Beaufort County, South
Carolina, and whose members were known as the “Burton Boys.” In
2
January 1998, a task force of local, State, and Federal law
enforcement officers began an investigation into the Burton Boys,
which revealed that Smalls had sold cocaine base (“crack”) and
cocaine that he received from various sources. On December 9,
1998, after completion of the investigation, a thirty-three count
indictment was returned against twenty-eight defendants, including
Smalls, for various drug-trafficking activities. Smalls was
charged in three of those counts with: (1) conspiring to possess
with intent to distribute cocaine and cocaine base, in
contravention of 21 U.S.C. §§ 846 and 841(a)(1) (“Count 1”); (2)
possessing with intent to distribute cocaine base, in violation of
21 U.S.C. § 841(a)(1) (“Count 2”); and (3) possessing with intent
to distribute cocaine, in contravention of 21 U.S.C. § 841(a)(1).
On March 16, 1999, Smalls and his lawyer entered into a
“proffer” understanding with the Government, by which Smalls, inter
alia, agreed to “be fully truthful and forthright” with the
authorities, to assist in negotiations with the prosecution on a
potential plea agreement. Later that month, pursuant to the
proffer, Agents March and Purcell of the FBI twice interviewed
Smalls — with the consent of his then-counsel, Joenathan Chaplin.
The agents sought to confirm their suspicion that Smalls possessed
information concerning (and had possibly participated in) the July
1994 drug-related murder of Audrey Stoeckle. During each interview
Smalls requested to speak with his counsel, Mr. Chaplin, and each
3
time his request was granted. In the second interview, on March
24, 1999, Smalls admitted being present at the Stoeckle murder and
asserted that his co-defendant Benjamin Gibbs had killed Stoeckle.
Two months later, on May 20, 1999, a formal plea agreement was
entered into and Smalls pleaded guilty to Counts 1 and 2 of the
indictment — the offenses of conspiracy and possession with intent
to distribute crack cocaine. As part of the plea agreement, Smalls
admitted being “personally responsible for . . . at least 500 grams
but less than 1.5 kilograms” of crack.1 On December 15, 1999, in
compliance with the plea agreement, Smalls submitted to a polygraph
examination. Before the polygraph was administered, Smalls was
advised of and waived his Miranda rights. During the examination
itself, Smalls denied shooting Stoeckle. When Smalls was informed
that he had failed the polygraph examination, he requested that the
post-examination interview cease, and it was immediately
terminated.
Because Smalls had failed the polygraph examination, the
Government was unable to use him as a witness against Gibbs, who
was being prosecuted for the murder of Stoeckle. His inability to
testify in turn prejudiced his eligibility for a downward departure
1
The plea agreement between the Government and Smalls also
provided that, if Smalls failed to be “fully truthful and
forthright at any stage,” the attorneys for the Government could —
at their sole election — “cause the obligations of the
[Government] to become null and void.”
4
for cooperation with the Government, under § 5K1.1 of the
Sentencing Guidelines. In an attempt to get Smalls “back in the
ball game,” his lawyer, Mr. Chaplin, thereafter gave permission for
FBI agents to re-interview Smalls. As a result, on January 26,
2000, Agents March and Purcell interviewed Smalls at the Dorchester
County Jail in St. George, South Carolina June 1, 2005(the “Final
Interview”). On that occasion, the agents informed Smalls that his
polygraph examination had indicated deceptiveness, and they asked
him to further explain what had happened the night of the Stoeckle
shooting. Smalls then admitted that he had aimed a 9-millimeter
pistol towards a ditch in which Stoeckle lay screaming, that he had
fired three or four shots in her direction, and that she had made
a “dying sound.” Smalls never requested either the presence of
his lawyer or that the interview be terminated.
The district court thereafter conducted a three-day
sentencing hearing concerning Smalls, from February 11 through
February 13, 2004.2 At that hearing, Smalls contended that the FBI
agents did not have permission from his attorney, Chaplin, to
conduct the Final Interview, and therefore that any admissions he
had made in the Interview were obtained in violation of his Sixth
Amendment right to counsel. Chaplin testified in the sentencing
2
On August 31, 1999, the probation officer completed
Smalls’s Presentence Investigation Report (“PSR”), which was
subsequently revised and supplemented four times, incorporating
objections by both the Government and Smalls. The final addendum
to the PSR was filed on February 5, 2004.
5
hearing on that issue, and asserted that he could not remember
whether he had agreed that the agents could re-interview Smalls.
The district court, in ruling on the factual dispute, found that
Chaplin had given permission for his client to be re-interviewed by
the agents, observing that the only way Chaplin could have gotten
Smalls “back in the ball game,” i.e., to testify for the Government
and thereby become eligible for a downward departure, was to
authorize the FBI agents to re-interview him.
In determining Smalls’s sentencing range, the court
grouped the drug conspiracy and drug possession counts together.
See USSG § 3D1.2(d) (2003). First, it found that, disregarding the
plea agreement, Smalls had dealt at least 1.5 kilograms of crack,
which resulted in a base offense level of 38. See id. § 2D1.1.
Second, the court enhanced Smalls’s offense level by two levels for
possession of a dangerous weapon, increasing his offense level to
40. See id. § 2D1.1(b)(1). The court based this enhancement on
the evidence related to the Stoeckle murder, as Smalls had not
pleaded guilty to any facts related to possession of a firearm.
Finally, the court found that Smalls was responsible for the murder
of Stoeckle and applied the murder cross-reference. See §
2D1.1(d)(1) (“If a victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111 had such killing taken
place within the territorial or maritime jurisdiction of the United
States, apply § 2A1.1 (First Degree Murder).”). In making its §
6
2D1.1(d)(1) ruling, the court concluded, “I’m convinced beyond a
reasonable doubt that you participated in this murder and you shot
this girl.”
As a result of the court’s application of the §
2D1.1(d)(1) murder cross-reference, Smalls’s base offense level was
43 — notwithstanding the court’s earlier calculations. After
determining that his criminal history category was II, Smalls’s
guideline sentence was life in prison. However, the statutory
maximum for each of the offenses to which Smalls had pleaded guilty
was twenty years, under 21 U.S.C. § 841(b)(1)(C), thus limiting his
maximum sentence to forty years. See Apprendi v. New Jersey, 530
U.S. 466, 490 (2000) (“Other 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 reasonable doubt.”).3 As a result, the court
sentenced Smalls to two consecutive terms of 240 months (twenty
3
In his plea agreement Smalls had stipulated to a quantity
of drugs which could have made him eligible for a life sentence
under § 841(b)(1)(B)(ii)(II) of Title 21. Counts 1 and 2 of the
indictment, however, alleged no drug quantities. Compare 21 U.S.C.
§ 841(b)(1)(B)(ii)(II) (authorizing life imprisonment for
possession of 500 grams of cocaine mixture) with 21 U.S.C. §
841(b)(1)(C) (authorizing twenty-year maximum sentence for
possession of cocaine mixture). Because the Government does not
contest the court’s conclusion that Smalls’s maximum term of
imprisonment was capped at forty years, we need not address the
question of whether the drug quantities stipulated to in the plea
agreement made Smalls eligible for a life sentence.
7
years) on each of the counts to “carry out . . . the Guideline
Range as near as possible, or the Guideline Range of life.”
Smalls has filed a timely notice of appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.4II.
In reviewing a district court’s sentencing determinations
under the Guidelines, we review findings of fact for clear error
and the court’s application of the Guidelines de novo. See United
States v. Savage, 390 F.3d 823, 832 (4th Cir. 2004). When a timely
and sufficient objection to the erroneous application of a
sentencing provision has not been made, we are only empowered to
correct the sentencing error if it constitutes “plain error” under
Federal Rule of Criminal Procedure 52(b). See Fed. R. Crim. P.
52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s
attention.”); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005). With these principles in mind, we assess Smalls’s
contentions on appeal.
4
On January 24, 2005, Smalls filed in this Court a motion to
remand for resentencing pursuant to United States v. Booker, 125 S.
Ct. 738 (2005). On February 14, 2005, Smalls filed a supplemental
brief with our permission, contending that his sentence violated
the Sixth Amendment under Booker.
8
III.
First of all, Smalls maintains that the sentencing court
erred in considering the admissions that he made to the FBI agents
in the Final Interview — that he pointed a pistol in the direction
of Stoeckle and that, after he fired three or four shots in her
direction, she made a “dying sound” — because those admissions
were obtained from him in violation of the Fifth and Sixth
Amendments. Second, Smalls contends that his sentence contravened
his Sixth Amendment right to a jury trial because it was based on
judge-found facts, in violation of Booker.
A.
1.
In challenging the court’s consideration of the
admissions made by him in the Final Interview, Smalls makes a two-
pronged constitutional assertion. First, he maintains that the
statements were obtained in contravention of his Fifth Amendment
privilege against self-incrimination. See U.S. Const. amend. V
(“No person shall be . . . compelled in any criminal case to be a
witness against himself . . . .”); Missouri v. Seibert, 124 S. Ct.
2601, 2608 (2004) (reaffirming that “the accused must be adequately
and effectively apprised of his rights and the exercise of those
rights must be fully honored.”) (internal quotation marks omitted).
Specifically, Smalls contends that after he asserted his desire to
9
terminate the post-polygraph interview, the Government was mandated
(but failed) to advise him of his Miranda rights at the outset of
the Final Interview. See Michigan v. Mosely, 423 U.S. 96, 104
(1975) (holding that “the admissibility of statements obtained
after the person in custody has decided to remain silent depends
under Miranda on whether his right to cut off questioning was
scrupulously honored”) (internal quotation marks omitted).
Unfortunately for Smalls, he waived his privilege against
self-incrimination by entering into the plea agreement with the
Government, in which he specifically agreed to “be fully truthful
and forthright.” As we observed in United States v. Scruggs, a
number of courts have concluded that “‘a plea agreement that states
in general terms the defendant’s obligation to cooperate with the
government can constitute a waiver of the defendant’s Fifth
Amendment privilege against self-incrimination.’” 356 F.3d 539,
546 (4th Cir. 2004) (finding defendant waived Fifth Amendment
privileges by entering plea agreement) (quoting United States v.
Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000)). Smalls seeks to
distinguish the Scruggs decision, however, on the basis that
Scruggs had explicitly waived all “claim[s] under the United States
Constitution,” whereas Smalls agreed only to cooperate and be
truthful, without explicitly waiving his constitutional rights.
Smalls’s contention on this point is unavailing, however,
because he is asserting a distinction in the two cases that is
10
immaterial. In examining this point, we are bound by our precedent
in United States v. Wise, that a defendant has “waived his fifth
amendment privilege by entering into the plea agreement requiring
him to cooperate with the government.” 603 F.2d 1101, 1104 (4th
Cir. 1979); see also United States v. Resto, 74 F.3d 22, 27 (2d
Cir. 1996) (observing that defendant “entered into the agreement
voluntarily, electing to give up his [Fifth Amendment] privilege
(to a limited extent) in exchange for the benefits of the
agreement”); United States v. Lawrence, 918 F.2d 68, 72 (8th Cir.
1990) (“Any Fifth Amendment right not to reveal the full extent of
his criminal activity was waived when [the defendant] entered the
plea agreement, as well as each time thereafter when he volunteered
different information.”). By entering into his plea agreement with
the Government and thereby agreeing be fully truthful and
forthright, Smalls necessarily waived his Fifth Amendment privilege
against self-incrimination regarding the Stoeckle murder. As a
result, the sentencing court was entitled to take into account
Smalls’s post-plea admissions concerning the Stoeckle murder
without contravening the Fifth Amendment.
2.
Second, Smalls maintains that his post-plea admissions
were obtained in violation of his Sixth Amendment right to counsel.
The Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to the have the Assistance
11
of Counsel for his defence.” U.S. Const. amend. VI. The right to
counsel attaches after “adversary judicial proceedings” have been
initiated against the defendant “‘whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.’”
United States v. Gouveia, 467 U.S. 180, 187-88 (1984) (quoting
Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Thus, Smalls’s Sixth
Amendment right to counsel had attached when he made the statements
at issue.5
A defendant whose Sixth Amendment right to counsel has
attached is entitled to waive that right in connection with a
police-initiated interrogation. Patterson v. Illinois, 487 U.S.
285, 292-93 (1988); see also Michigan v. Harvey, 494 U.S. 344, 352
(1990) (“[N]othing in the Sixth Amendment prevents a suspect
charged with a crime and represented by counsel from voluntarily
choosing, on his own, to speak with police in the absence of an
attorney.”). And, “in at least some cases[,] waiver can be clearly
5
The Sixth Amendment — unlike the Fifth Amendment — is
offense-specific, in that its invocation as to a pending offense
would not preclude police from interrogating a suspect about an
unrelated offense. See Texas v. Cobb, 532 U.S. 162, 173-74 (2001)
(holding that Sixth Amendment right to counsel encompasses only
offenses that “would be considered same offense under the
Blockburger test”) (citing Blockburger v. United States, 284 U.S.
299, 304 (1932) (“where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other
does not”)). In this appeal, however, the Government makes no
contention that the Stoeckle murder was a separate offense, under
Blockburger, from the drug offenses with which Smalls was charged.
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inferred from the actions and words of the person interrogated.”
North Carolina v. Butler, 441 U.S. 369, 373 (1979). In assessing
whether there has been a knowing, intelligent, and voluntary waiver
of the right to counsel, a court is obliged to weigh “the
particular facts and circumstances surrounding th[e] case,
including the background, experience, and conduct of the accused.”
Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on
other grounds by Edwards v. Arizona, 451 U.S. 477 (1981).
The particular facts and circumstances surrounding this
case undermine Smalls’s contention with respect to his right to
counsel issue at the Final Interview. First of all, Smalls,
assisted by his counsel, had entered into a plea agreement with the
prosecutor, by which he agreed to “be fully truthful and
forthright” with the Government regarding his “unlawful
activities.” Second, less than six weeks before the Final
Interview, Smalls’s Miranda rights had been fully explained to him
and he had waived them. Indeed, the record shows that those
constitutional rights had been explained to him on multiple
occasions. When the Final Interview was conducted, Smalls was a
twenty-six year old adult possessing an eleventh grade education,
and he had personal experience in the state criminal justice system
as a result of various criminal proceedings instituted against him.
Third, during the Government’s two March 1999 interviews of Smalls,
he had asserted a desire to speak with his counsel, and he had
13
requested that his post-polygraph interview be terminated,
demonstrating his knowledge of his right to have his counsel
present. Fourth, his own lawyer had initiated the Final Interview
by speaking directly with the prosecutor, in an effort to get
Smalls “back in the ball game,” i.e., testifying for the Government
and thereby potentially eligible for a downward departure.
Finally, Smalls never expressed any desire to have his counsel
present at the Final Interview. In these circumstances, we are
constrained to conclude that Smalls never asserted his right to
counsel with respect to that Interview. See Butler, 441 U.S. at
373 (holding implied waiver of Sixth Amendment rights permissible).
As a result, we also reject Smalls’s contention that the statements
he made in the Final Interview were obtained in contravention of
his right to counsel.
B.
We next assess Smalls’s contention that his sentence was
imposed in violation of the Sixth Amendment’s jury trial guarantee,
in light of Booker and its progeny. Because Smalls raised this
Sixth Amendment challenge for the first time on appeal, we review
his contention for plain error only, applying the principles of
United States v. Olano, 507 U.S. 725, 732 (1993). See United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). The plain
error mandate of Olano is satisfied if: (1) there was error; (2) it
was plain; and (3) it affected the defendant’s substantial rights.
14
507 U.S. at 732. If these conditions are met, we may then exercise
our discretion to notice the error, but only if it “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and alteration
omitted).
Under Olano’s first prong, the forty-year prison term
which the sentencing court imposed on Smalls was erroneous. See
Booker, 125 S. Ct. at 755-56 (holding Sixth Amendment contravened
when sentencing court, acting pursuant to Guidelines, imposes
sentence greater than maximum authorized by facts found by jury
alone). Under the then-mandatory Guidelines regime, the facts to
which Smalls pleaded guilty supported an offense level of 38,
resulting in a sentencing range of 262 to 327 months. The court’s
application of the § 2D1.1(d)(1) murder cross-reference —
predicated on facts related to Stoeckle’s murder to which Smalls
did not plead guilty — increased his offense level to 43,
resulting in a guideline sentence of life in prison. Under Booker,
the sentencing court erred in relying on its own fact-finding to
impose a sentence on Counts 1 and 2 in excess of 327 months. See
Hughes, 401 F.3d at 547 (recognizing that imposition of sentence,
“in part based on facts found by the judge, . . . constituted
error”).
Second, although Smalls’s Sixth Amendment contention was
foreclosed by our precedent at the time of his sentencing, Booker
15
has “abrogated our previously settled law,” rendering plain the
error made by the sentencing court. Hughes, 401 F.3d at 547-48.
And third, the sentencing error made by the court was prejudicial,
in that Smalls’s 480-month sentence was 153 months longer than the
maximum of 327 months authorized by the facts to which he pleaded
guilty. See id. at 548-49.
Finally, we are obliged to notice the plain error in
Smalls’s sentence. See Hughes, 401 F.3d at 555-56 (exercising
discretion to notice Booker error). As a result of this error,
Smalls was sentenced to a term of imprisonment greater than that
authorized by the facts to which he had pleaded guilty, seriously
affecting “the fairness, integrity or public reputation of [the]
judicial proceedings.” Olano, 507 U.S. at 732 (internal quotation
marks omitted); see also Hughes, 401 F.3d at 555. And, we have no
indication as to what sentence the court would have imposed absent
the Sixth Amendment error. We are thus constrained to vacate
Smalls’s sentence and remand for resentencing consistent with
Booker and its progeny.6
6
Smalls also contends that the sentencing court erroneously
applied the murder cross-reference under § 2D1.1(d)(1) of the
Guidelines, in that (1) there was insufficient evidence that he
murdered Stoeckle, (2) there was insufficient evidence that the
murder was in the first degree, and (3) application of the murder
cross-reference violated his Tenth Amendment rights. In these
circumstances, these contentions are patently without merit and
need not be further discussed.
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IV.
Pursuant to the foregoing, we vacate Smalls’s sentence
and remand for resentencing.7
VACATED AND REMANDED
7
Smalls’s motion to remand this case for resentencing, see
infra note 4, filed in this Court pursuant to Booker after his
appeal was initiated, is rendered moot by our disposition of the
appeal.
17