United States v. William E. Dunlap ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2996
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
William E. Dunlap, *
*
Appellant. *
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Submitted: March 14, 2006
Filed: June 23, 2006
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Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
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ARNOLD, Circuit Judge.
After grocery store employees detained William Dunlap for shoplifting, Omaha
police searched his car and found a large quantity of pseudoephedrine tablets.
Mr. Dunlap pleaded guilty to possession of pseudoephedrine with knowledge that it
would be used to manufacture methamphetamine. See 21 U.S.C. § 841(c)(2). No
quantity of pseudoephedrine was mentioned in the indictment.
At his initial sentencing hearing, Mr. Dunlap objected to the determination in
the presentence investigation report (PSR) that he was responsible for 27.8 grams of
pseudoephedrine. The district court nonetheless adopted that amount and sentenced
Mr. Dunlap to 70 months in prison. We reversed that sentence and remanded for
"resentencing in light of United States v. Booker," 543 U.S. 220 (2005). On remand,
the district court allowed the government to introduce evidence establishing the
quantity of pseudoephedrine. The court then adopted the government's position on
quantity and imposed the same 70-month sentence that it had previously imposed on
Mr. Dunlap. He again appeals, arguing that the government should not have been
allowed to introduce evidence regarding quantity on remand and that the sentence is
unreasonable. We affirm.
I.
Mr. Dunlap entered his guilty plea shortly after the Supreme Court's decision
in Blakely v. Washington, 542 U.S. 296, 303-05 (2004), which held that the sixth
amendment requires the prosecution to prove to a jury beyond a reasonable doubt
facts that increase a defendant's maximum sentence. The decision in Blakely raised
questions about the constitutionality of the then-mandatory federal sentencing
guidelines but declined to address them. See id. at 305 n.9.
In his written response to the PSR, Mr. Dunlap included a section titled
"Blakely Objections to Offense Level Determinations," in which he challenged the
quantity of pseudoephedrine (27.8 grams) attributed to him in the report; he stated
that "[i]n his guilty plea proceedings, the Defendant has never made any admissions
of quantity, and he does not now. The Defendant objects to all such factual
allegations in the PSR." Mr. Dunlap argued that for sentencing purposes, his base
offense level could not be increased beyond 12, the level representing the minimum
quantity for which he could have been convicted. See U.S.S.G. § 2D1.11(a), (d)(14).
In response to Mr. Dunlap's objections to the PSR, the district court made
"tentative findings" in which it rejected the defendant's objection to the quantity of
pseudoephedrine and the offense level, stating simply that "the Court will deny the
objection and apply the sentencing guidelines." The order containing these tentative
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findings included a provision instructing the parties to file a responsive motion if they
wished to challenge the findings. Mr. Dunlap did not file a motion before the
sentencing hearing, but when it convened he repeated his initial objections to ensure
that they were preserved. The district court again indicated that the defendant's
objections were noted and overruled, and it proceeded to sentence Mr. Dunlap based
on the quantity contained in the PSR.
While Mr. Dunlap's first appeal of his sentence was pending, the Supreme
Court handed down its decision in Booker, 543 U.S. at 258-60, which held that the
federal sentencing guidelines did not violate the sixth amendment so long as they
were applied in an advisory manner. In response to Booker, Mr. Dunlap filed a
motion for an immediate remand of his case for resentencing. We granted that motion
in a one-sentence order.
At resentencing, the parties again addressed the issue of quantity. Mr. Dunlap
maintained that because he objected to the quantity finding the first time around, the
government should be precluded from offering new evidence on remand to support
the quantity determination. The district court's response is reflected in the transcript
from the second sentencing:
THE COURT: As I mentioned earlier, my understanding of your
objections on quantity, the first time around, was that you were
preserving Blakely objections with respect to quantity. And again, I'm
– I had interpreted the objection as one related to the issue of whether
quantity needed to be decided by a jury or a judge, whether quantity
needed to be in fact alleged in the indictment as an element of the
offense, and what the standard of proof would be. That's how I
understood your Blakely objections on the question of quantity and that's
why I think we didn't get into the factual issues about quantity at the
time of the initial sentencing. I am not going to preclude the
government from addressing those matters today.
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As the government prepared to call a witness to testify to the quantity of
pseudoephedrine found on Mr. Dunlap, he stipulated to that witness's testimony,
effectively agreeing that the government could prove the quantity outlined in the
PSR. With that evidence, the court found that Mr. Dunlap was responsible for
27.8 grams of pseudoephedrine.
Mr. Dunlap's primary argument is that the government, having failed to
introduce evidence of quantity at his first sentencing hearing, should not have been
given a second bite at the apple on remand. On occasion we have remanded with
instructions to resentence a defendant on the existing record because the government,
in the first sentencing proceeding, violated clearly settled legal principles by relying
on allegations in the PSR to prove disputed facts. See United States v. Poor Bear,
359 F.3d 1038, 1043-44 (8th Cir. 2004); United States v. Hudson, 129 F.3d 994, 995
(8th Cir. 1997) (per curiam). But where a court of appeals vacates a sentence or
reverses a finding related to sentencing and remands the case for resentencing without
placing any limitations on the district court, the court "can hear any relevant evidence
on that issue that it could have heard at the first hearing." United States v. Cornelius,
968 F.2d 703,705 (8th Cir. 1992) (internal citations and parentheticals omitted); see
also United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996), cert. denied, 522 U.S.
855 (1997); United States v. Kang, 197 F.3d 927, 928 (8th Cir. 1999) (per curiam);
United States v. Curtis, 336 F.3d 666, 669 (8th Cir. 2003). Because nothing in our
original remand order precluded the government from presenting its evidence at
resentencing, we cannot say that the district court erred in allowing it to do so.
We also think that the circumstances at the first sentencing in this case explain
the government's failure to present evidence at that time. Cf. United State v. Sorrells,
432 F.3d 836, 839 (8th Cir. 2005). Once the court made its tentative findings in
advance of the sentencing hearing and the defendant did not file a motion in
opposition to them, the government had no reason to believe that it would be required
to put on evidence at the sentencing proceeding. Although we agree with Mr. Dunlap
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that he preserved both legal and factual objections to the quantity determination, and
that the district court (understandably) may have read his objections too narrowly
when it made its tentative findings, we do not think that the government should pay
the price. The record of the second sentencing hearing indicates that the government,
when notified that the district court would accept evidence on the quantity issues, was
prepared to put on that evidence until Mr. Dunlap stipulated that the government
would be able to produce evidence relevant to quantity.
II.
Mr. Dunlap also argues that his 70-month sentence was unreasonable.
A sentence that falls within the advisory guideline range is presumptively reasonable.
United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005), cert. denied, 126 S. Ct.
840 (2005).
The district court sentenced Mr. Dunlap to 70 months' imprisonment, which
was the low end of the advisory guidelines range. Mr. Dunlap contends that his
sentence is unreasonable because his offense was not particularly serious, his criminal
record was relatively minor and largely stemmed from his addiction, and he made
significant efforts at rehabilitation. While Mr. Dunlap demonstrated significant
progress in his rehabilitation, the record before the district court also revealed that he
failed in several particulars to meet the conditions of his pretrial release. The
government also raised the legitimate concern that a sentence outside the advisory
guidelines could lead to unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(6). Given these facts, we are unable to say that Mr. Dunlap has overcome
the presumption that the sentence was reasonable.
III.
For the reasons stated, we affirm the judgment.
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