United States v. Michel , 178 F. App'x 317 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANTZ MICHEL, a/k/a Freon, a/k/a John Doe,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 03-10755)
Submitted: February 28, 2006 Decided: May 4, 2006
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Michael Morchower, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before us on remand from the United States
Supreme Court for further consideration in light of United
States v. Booker, 543 U.S. 220 (2005). In United States v. Michel,
No. 03-4204, 88 F. App’x 623 (4th Cir. 2004) (unpublished),
vacated, 543 U.S. 1099 (2005), we affirmed Michel’s conviction and
life sentence imposed by the district court after a jury convicted
Michel of conspiracy to possess with intent to distribute a
quantity of heroin, a quantity of cocaine, and more than fifty
grams of cocaine base “crack” in violation of 21 U.S.C. § 846(2000). On January 24, 2005, the Supreme Court granted Michel’s
petition for certiorari, vacated our judgment, and remanded in
light of Booker. On remand, Michel alleges he should be
resentenced in light of Booker and makes several arguments
regarding the propriety of his conviction. After reviewing
Michel’s appeal in light of Booker, we affirm his conviction but
vacate his sentence and remand for resentencing.
Michel contends that his sentence violates the Sixth
Amendment because the district court at sentencing held him
accountable for additional drug amounts, a leadership role in the
offense, and possession of a gun based on findings not found by the
jury or admitted by him. Because Michel did not raise a Sixth
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Amendment issue in the district court, we review for plain error.1
See United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To
demonstrate plain error, Michel must establish that error occurred,
that it was plain, and that it affected his substantial rights.
Id. at 547-48. If a defendant satisfies these requirements, our
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Id. at 555 (internal quotation marks and citation omitted).
In Booker, the Supreme Court held that the mandatory
manner in which the Sentencing Guidelines required courts to impose
sentencing enhancements based on facts found by the court by a
1
The Government asserts that Michel waived appellate review of
his Sixth Amendment challenge to his sentence by failing to raise
it in his initial brief before this court. Although the Government
correctly states the general rule, see United States v. Al-Hamdi,
356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well settled rule
that contentions not raised in the argument section of the opening
brief are abandoned.”), we decline to enforce it in light of our
order directing the parties to file supplemental briefs addressing
Booker. See United States v. Washington, 398 F.3d 306, 312 n.7
(4th Cir.) (stating that “[a]lthough appellate contentions not
raised in an opening brief are normally deemed to have been waived
. . . the Booker principles apply in this proceeding because the
[Supreme] Court specifically mandated that we must apply [Booker]
. . . to all cases on direct review.”) (internal quotation marks
and citations omitted), cert. denied, 125 S. Ct. 2558 (2005);
United States v. James, 337 F.3d 387, 389 n.1 (4th Cir. 2003)
(“Because the court requested the additional briefing, this case is
not governed by our rule that arguments not raised in the
appellant’s opening brief are typically deemed abandoned on
appeal.”), cert. denied, 540 U.S. 1134 (2004).
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preponderance of the evidence violated the Sixth Amendment. 125 S.
Ct. at 746, 750 (Stevens, J., opinion of the Court). The Court
remedied the constitutional violation by making the Guidelines
advisory through the removal of two statutory provisions that had
rendered them mandatory. Id. at 746 (Stevens, J., opinion of the
Court); id. at 756-67 (Breyer, J., opinion of the Court).
Here, the district court sentenced Michel under the
mandatory Federal Sentencing Guidelines by determining drug
quantities in excess of that listed in the indictment, under U.S.
Sentencing Guidelines Manuel § 2D1.1(c)(1) (2002), increased his
base offense level by four for his leadership role under USSG
§ 3B1.1(a), because he was an organizer of the criminal activity,
and increased his offense level by two for possession of a firearm
under USSG § 2D1.1(b)(1). These findings yielded a Sentencing
Guideline range of life. Using only the amount of drugs found by
the jury (fifty grams of crack cocaine), see USSG § 2D1.1(c)(4),
and without the enhancements for being an organizer and possessing
a firearm, Michel’s total offense level would have been 32, which,
with his criminal history category of I, would have provided a
sentencing range of 121-151 months of imprisonment. In light of
Booker and Hughes, we find that the district court’s plain error in
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sentencing Michel based on facts found by the court affects his
substantial rights and warrants correction.2
Accordingly, we vacate Michel’s sentence and remand for
resentencing.3 We also affirm Michel’s conviction for the reasons
in our prior opinion.4 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 IN PART, AND REMANDED
2
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district court judge, who followed the law and
procedure in effect at the time” of Michel’s sentencing. Hughes,
401 F.3d at 545 n.4. See generally Johnson v. United States, 520
U.S. 461, 468 (1997) (stating that an error is “plain” if “the law
at the time of trial was settled and clearly contrary to the law at
the time of appeal”).
3
Although the Guidelines are no longer mandatory, Booker makes
clear that a sentencing court must still “consult [the] Guidelines
and take them into account when sentencing.” 125 S. Ct. at 767
(Breyer, J., opinion of the Court). On remand, the district court
should first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. Hughes, 401 F.3d at 546. The court should consider
this sentencing range along with the other factors described in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and then impose a
sentence. Hughes, 401 F.3d at 546. If that sentence falls outside
the Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 &
Supp. 2005). Hughes, 401 F.3d at 546. The sentence must be
“within the statutorily prescribed range and . . . reasonable.”
Id. at 547.
4
See Al-Hamdi, 356 F.3d at 571 n.8 (noting that “[i]t is a
well settled rule that contentions not raised in the argument
section of the opening brief are abandoned.”)
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