United States v. Donald T. Talbott ( 2005 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-2742
    ___________
    United States of America,               *
    *
    Appellee,          * Appeal from the United States
    * District Court for the District
    v.                                * of Nebraska.
    *
    Donald T. Talbott,                      *     [UNPUBLISHED]
    *
    Appellant.         *
    ___________
    Submitted: May 10, 2005
    Filed: May 19, 2005
    ___________
    Before MURPHY, FAGG, and BENTON, Circuit Judges.
    ___________
    PER CURIAM.
    Donald T. Talbott pleaded guilty to conspiracy to distribute and possession
    with intent to distribute methamphetamine. In the written plea agreement, Talbott
    agreed that he “should be held responsible beyond a reasonable doubt for at least 1.5
    kilograms but less than 5 kilograms of a substance containing methamphetamine.”
    In the agreement, Talbott also admitted “that he possessed a firearm in connection
    with the felony offense . . . and that such conduct qualifie[d] him for a two level
    upward adjustment to his base offense level.”
    Talbott now appeals his sentence arguing that his sentence violates his Sixth
    Amendment rights under Blakely v. Washington, 
    124 S. Ct. 2531
    (2004), because the
    sentence is based on facts not admitted by him or proven to a jury beyond a
    reasonable doubt. We disagree. Blakely states that when a defendant pleads guilty,
    the Government is free to seek judicial sentence enhancements if the defendant
    stipulates to the relevant facts. 
    Id. at 2541.
    Because Talbott was sentenced based
    solely on facts he admitted as part of his guilty plea, Blakely is not implicated.
    United States v. Lucca, 
    377 F.3d 927
    , 934 (8th Cir. 2004).
    Talbott acknowledges that a defendant may waive his Sixth Amendment right
    to a jury determination of facts, but contends he did not validly waive the right
    because he signed his plea agreement before Blakely clarified the right. At the time
    of Talbott’s plea agreement, however, defendants could argue the Sixth Amendment
    and Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), required a jury to find facts used
    to enhance a sentence. Talbott did not do so, and instead chose to plead guilty in
    exchange for the Government’s agreement to drop some of the charges against him.
    Besides, in the district court, Talbott raised no sentencing issue under Blakely
    or United States v. Booker, 
    125 S. Ct. 738
    (2005), so any review would be for plain
    error. United States v. Pirani, 
    2005 WL 1039976
    , at *3 (8th Cir. May 5, 2005). To
    establish plain error, the defendant must show a reasonable probability that but for
    the error, he would have received a more favorable sentence. 
    Id. at *6.
    Talbott has
    not tried to make this showing. Thus, there is no plain error under Booker. In any
    event, we are satisfied Talbott’s sentence is reasonable.
    Accordingly, we affirm Talbott’s sentence.
    ______________________________
    -2-
    

Document Info

Docket Number: 04-2742

Judges: Murphy, Fagg, Benton

Filed Date: 5/19/2005

Precedential Status: Non-Precedential

Modified Date: 3/2/2024