United States v. Wright , 137 F. App'x 802 ( 2005 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0518n.06
Filed: June 17, 2005
No. 04-1685
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
ON APPEAL FROM THE
Plaintiff-Appellee, UNITED STATES DISTRICT
COURT FOR THE WESTERN
v. DISTRICT OF MICHIGAN
QUINCY ARMAND WRIGHT, OPINION
Defendant-Appellant.
BEFORE: NORRIS and DAUGHTREY, Circuit Judges; JORDAN, District Judge.*
PER CURIAM. Defendant Quincy Armand Wright appeals from the sentence that he
received after entering a guilty plea to a single count of drug trafficking, 21 U.S.C. § 841(a)(1).
Specifically, he contends that the district court erred when it enhanced his Guidelines offense level
based upon factual determinations that were neither admitted by defendant nor found by a jury
beyond a reasonable doubt. In light of United States v. Booker, 125 S. Ct. 738 (2005), and the cases
of this circuit applying it, see, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir. 2005); United
States v. Oliver, 397 F.3d 369 (6th Cir. 2005), we vacate the judgment and remand the matter to
the district court for re-sentencing.
I.
*
The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.
No. 04-1685
United States v. Wright
On September 4, 2002, a grand jury returned a one-count indictment charging defendant
with trafficking in more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Trial
was scheduled for Monday, November 18, 2002. Defendant failed to appear. According to his
attorney, he had fallen off a ladder while at work the preceding weekend and had been prescribed
pain medication. The district court rescheduled the trial for Wednesday. When defendant failed
to appear for a second time, the district court issued a bench warrant for his arrest. He was taken
into custody on unrelated drug charges in Illinois on June 6, 2003, and returned to the Western
District of Michigan in December.
Represented by new counsel, defendant entered a guilty plea on February 6, 2004 without
the benefit of a written plea agreement. In the course of the change of plea hearing, the following
exchange occurred:
THE COURT: How much [crack cocaine] did you have with you?
DEFENDANT: Over 50 grams.
THE COURT: Have you ever seen any report or has anyone ever told you
exactly how much you had?
DEFENDANT: Yes, Sir.
THE COURT: How much did they tell you you had or did you believe you had?
DEFENDANT: 151 grams.
THE COURT: That’s what you believe you had?
DEFENDANT: I’m not sure. That’s what I was told.
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After this colloquy, the AUSA interjected that “for the record . . . the crack that Mr. Wright had
on August 28, 2002, has been analyzed by the laboratory and determined to be 151.5 grams of
cocaine base, also known as crack.”
The final pre-sentence investigation report (“PSR”) noted that the laboratory test results
determined the weight of the crack cocaine to be 151.16 grams, which resulted in a base offense
level of 34. U.S.S.G. § 2D1.1(c)(3) (Nov. 2003) (level 34 if at least 150 grams but less than 500
grams of cocaine base). Had the amount of cocaine base charged in the indictment been attributed
to defendant, his base offense level would have been only 32. U.S.S.G. § 2D1.1(c)(4) (for at least
50 but less than 150 grams of cocaine base). Defendant objected to this calculation, arguing that
the weight calculated by police laboratory may have included a “knotted sandwich type bag” that
contained the crack, thereby potentially pushing the weight above the critical 150 gram level.
The PSR also recommended that the base offense level be increased for possession of a
firearm, U.S.S.G. § 2D1.1(b)(1), and for obstruction of justice, U.S.S.G. § 3C1.1, resulting in an
adjusted base offense level of 38. However, the PSR went on to suggest that defendant receive
the benefit of a two-level decrease for acceptance of responsibility, U.S.S.G. § 3E1.1(a), because
he had entered a guilty plea without the benefit of a written agreement and had been “candid and
forthright” during the pre-sentence investigation. Thus, the total recommended offense level was
36. When coupled with a criminal history category of IV, defendant’s sentencing range was
between 262 and 327 months of imprisonment.
After the government lodged an objection to the two-level decrease for acceptance of
responsibility, the probation officer issued a supplemental addendum to the PSR that reversed
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United States v. Wright
course on this issue because “the defendant’s arrest for Unlawful Possession of a Controlled
Substance and Unlawful Possession of Marijuana [in Illinois] demonstrates he has not shown a
voluntary termination or withdrawal from criminal conduct or associations.” Thus, the adjusted
base offense level was revised to 38, resulting in a sentencing range of between 324 and 405
months of imprisonment.
On May 20, 2004, the district court conducted a sentencing hearing. At this time, defense
counsel continued to argue for a two-level decrease for acceptance of responsibility but conceded
that the drug quantity at issue involved more than 150 grams. The district court rejected his
contention in these terms:
Here, while being on an absconding status, two really unusual things
occurred. One is the defendant was arrested in a drug house or in a place where
drugs were being used, possessed, sold or whatever, and therefore, presumably in
a continuation of criminal behavior. Secondly, he gave an incorrect name, again
continuing of [sic] behavior that would be in violation of certainly the conditions
of bond and certainly potentially violation of law. So therefore, this Court believes
that an acceptance of responsibility should not be given in this matter.
The district court concluded by sentencing defendant to 324 months of imprisonment and five
years of supervised release.
II.
After judgment had been entered, the Supreme Court decided Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker,125 S. Ct. 738 (2005). In his brief to this court,
defendant contends that re-sentencing is required because the district court calculated his offense
level based upon a number of facts neither admitted by him nor found beyond a reasonable doubt
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No. 04-1685
United States v. Wright
in violation of the Sixth Amendment.1 These facts include the drug quantity determination,
obstruction of justice, and possession of a firearm during the offense.
As we recently explained, Booker applies to all criminal cases on direct review. Barnett,
398 F.3d at 524 (citing Booker, 125 S. Ct. at 769). However, because defendant did not raise a
Sixth Amendment challenge in the district court, we review for plain error. Oliver, 397 F.3d at
377-78; Fed. R. Crim. P. 52(b). This court has already applied plain error analysis to dozens of
Booker claims. In the vast majority of these cases, we have elected to remand to the district court
for re-sentencing. See, e.g., United States v. Hudson, 405 F.3d 425, 444 (6th Cir. 2005); Barnett,
supra; Oliver, supra; United States v. McDaniel, 398 F.3d 540, 547-50 (6th Cir. 2005). Moreover,
we have recently concluded that plain error occurs where, as here, the district court sentenced
defendant under what it perceived to be a mandatory, rather than advisory, Guidelines scheme
unless “the trial record contains clear and specific evidence that the district court would not have,
in any event, sentenced the defendant to a lower sentence under an advisory Guidelines scheme.”
Barnett, 398 F.3d at 529.
That said, Booker and its progeny do not require that this court remand for re-sentencing
whenever a defendant challenges a sentencing decision. It goes without saying that “[t]he Sixth
Amendment does not apply to agreed-upon facts; it regulates the decisionmaker of disputed facts.”
United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005). In the instant case, defendant
contends that the district court’s finding that he possessed more than 150 grams of cocaine base
1
Although defendant’s brief relies upon Blakely, he since has submitted a letter to this court pursuant to Fed.
R. App. P. 28(j) calling Booker and Oliver, supra, to our attention.
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for sentencing purposes should have been determined beyond a reasonable doubt. However,
defense counsel conceded at the sentencing hearing that his client possessed 151.16 grams of
cocaine base, rendering it an “agreed-upon fact” outside the purview of Booker.
Defendant did preserve his challenge to the district court’s decision not to grant him a two-
level downward adjustment for acceptance of responsibility. However, Booker applies to those
facts that potentially increase a sentence beyond those established by a plea of guilty or a jury
verdict. See Booker, 125 S. Ct. at 756; Blakely, 124 S. Ct. at 2536. A downward adjustment does
not fall into that category. While it remains subject to appellate review when, as here, it has been
properly preserved, our analysis remains unaffected by Booker except to the extent that the
Guidelines are now advisory rather than mandatory.
We accord due deference to the district court’s denial of acceptance of responsibility,
keeping in mind that its “factual determination of whether a defendant has accepted responsibility
for his crime enjoys the protection of the clearly erroneous standard.” United States v. Robinson,
152 F.3d 507, 512 (6th Cir. 1998) (citing United States v. Downs, 955 F.2d 397, 400 (6th Cir.
1992)). In the instant case, defendant failed to appear for trial and was charged with drug
trafficking while on the lam. Defendant contends that this behavior does not preclude a finding
that he accepted responsibility for his crime of conviction. We agree. However, it is equally true
that the district court could take that behavior into consideration and conclude that, under the
particular facts of this case, a two-level downward adjustment was not warranted. At the very
least, the district court did not commit clear error in reaching its decision.
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Finally, we turn to two sentencing enhancements that do implicate Booker: possession of
a firearm and obstruction of justice. Each of these enhancements, which were found by the district
court by a preponderance of the evidence, resulted in a two-level increase to defendant’s base
offense level. Had they not been imposed, his sentencing range would have been based upon an
adjusted offense level of 34 instead of 38. Rather than a sentencing range of between 324 and 405
months of imprisonment, defendant would have faced a Guidelines range of between 210 and 262
months. Because the Guidelines were mandatory at the time that the district court sentenced
defendant and the maximum sentence established beyond a reasonable doubt – in this case by
admitted facts – supports a maximum sentence of only 262 months, the sentence imposed violated
the Sixth Amendment. Oliver, 397 F.3d at 378. Accordingly, we must remand for the district
court to revisit these enhancements in light of Booker and our cases construing it.
III.
The judgment of the district court is vacated and the cause remanded for re-sentencing
consistent with this opinion.
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