United States v. Cole , 180 F. App'x 435 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OZZIE ANTHONY COLE, a/k/a T, a/k/a Jamaican T,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-01-25)
Submitted: April 21, 2006 Decided: May 15, 2006
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed in part and remanded by unpublished per curiam opinion.
David W. Frame, Clarksburg, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ozzie Anthony Cole appeals an order of the district court
finding that the sentence previously imposed was correct and
declining to resentence him. We agree that Cole’s sentence was not
erroneous, and affirm the district court’s order to that extent.
We remand the case so that the district court may reenter the
original judgment and commitment order nunc pro tunc.
Cole pled guilty to distribution of 2.12 grams of cocaine
base “crack,” and was initially sentenced to a term of 188 months
imprisonment. In his first appeal, Cole challenged the two-level
role adjustment he had received under U.S. Sentencing Guidelines
Manual § 3B1.1(c) (2001), based on information that he had
regularly fronted crack to defendant Howard (Happy) Peterson with
the understanding that Peterson would sell the crack and return
some of the money to him. Cole maintained that the role adjustment
was based on protected information he had provided to the
government pursuant to the cooperation provision in his plea
agreement. See USSG § 1B1.8(a), (b)(1) & comment. (n.1) (self-
incriminating information provided by a defendant under a
cooperation agreement may not be used to determine the guideline
range unless the information was already known to the government
before the defendant entered into the cooperation agreement). Cole
also claimed that the government had breached the plea agreement by
refusing to recommend an adjustment for acceptance of
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responsibility under USSG § 3E1.1. We found no merit in the latter
claim and affirmed the sentence in part, but vacated the sentence
and remanded with directions that the district court should
determine whether the government already knew of Cole’s arrangement
with Peterson before Cole provided that information pursuant to the
cooperation agreement. United States v. Cole, No. 02-4507, 2004 WL
292110 (4th Cir. Feb. 17, 2004) (unpublished).
On remand, the government produced evidence that it
obtained the relevant information from three witnesses before Cole
entered into his plea agreement. At a hearing on April 4, 2005,
the district court determined that Cole’s debriefing statement had
not been used to calculate his guideline range, and that the
sentence previously imposed need not be changed. The court
informed Cole that he could appeal the court’s decision. The court
entered an order on April 6, 2005, setting out its finding and
stating that it was not necessary to resentence Cole. From this
order, Cole has appealed.
Cole effectively concedes that the government obtained
information that Peterson sold crack for him before he entered into
his cooperation agreement. He now contends that the information
was unreliable until he confirmed it in his debriefing and that,
because the information lacked sufficient indicia of reliability,
it should not have been considered by the district court to resolve
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his objection to the role adjustment. See USSG § 6A1.3(a)
(Resolution of Disputed Factors).1
The district court did not clearly err in deciding the
factual issue before it on remand, i.e., that the government knew
of the information on which the role adjustment was based before
Cole entered into his plea agreement and was debriefed. The
credibility of the information provided by those witnesses was not
directly challenged by defense counsel on remand, and the district
court made no finding concerning their reliability. Because Cole
waived his right to appeal the sentence, any challenge to the
district court’s determination of the offense level that is
distinct from his claim that the government breached the plea
agreement by allowing the use of protected information is
foreclosed by the waiver provision in the plea agreement.2
Cole acknowledges that, under United States v. Blick, 408
F.3d 162 (4th Cir. 2005), his pre-Booker waiver of appeal rights
1
This guideline section provides that, to resolve disputed
sentencing factors, “the court may consider relevant information
without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient
indicia of reliability to support its probable accuracy.”
2
The assertions of error that Cole makes in his pro se
supplemental brief based on Apprendi v. New Jersey, 530 U.S. 466(2000), Blakely v. Washington, 542 U.S. 296 (2004), and United
States v. Booker, 543 U.S. 220 (2005), are similarly waived. Even
if the role adjustment issue were properly raised on appeal, we
would conclude that the district court did not plainly err in
finding, impliedly, that the witnesses’ information was
sufficiently credible to warrant consideration. See United
States v. Olano, 507 U.S. 725, 731-32 (1993) (standard of review).
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remains valid, but he urges us to reconsider Blick in light of
Booker and two other recent Supreme Court decisions. However,
“[i]t is well settled that, ‘a panel of this court cannot overrule,
explicitly or implicitly, the precedent set by a prior panel of
this court. Only the Supreme Court or this court sitting en banc
can do that.’” United States v. Chong, 285 F.3d 343, 346-47 (4th
Cir. 2002) (citation omitted).
Moreover, because Cole did not challenge the validity of
his waiver in the first appeal, the mandate rule precludes him from
challenging it at this point, unless the “controlling legal
authority has changed dramatically.” United States v. Bell, 5 F.3d
64, 67 (4th Cir. 1993). Cole first suggests that the waiver was
invalidated by Booker because he did not recognize his Sixth
Amendment rights when he pled guilty. This claim was rejected in
Blick, 408 F.3d at 170-73. Cole also urges this court to
reconsider Blick in light of Halbert v. Michigan, 125 S. Ct. 2582,
2594 (2005) (holding that indigent state defendant could not
implicitly waive right to appointed appellate counsel unrecognized
at the time of his nolo contendere plea). As explained above, we
lack authority to do that; in addition, we note that the Fifth
Circuit has held that Halbert does not govern where a defendant
makes an explicit waiver of his statutory, non-constitutional right
to appeal his sentence. United States v. Burns, 433 F.3d 442, 446-
50 (5th Cir. 2005).
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Cole also relies on Crawford v. Washington, 541 U.S. 36(2004). In Crawford, the Supreme Court held that the Confrontation
Clause prohibits the admission of testimonial statements that are
not subject to cross-examination. Id. at 50-51. Before Crawford,
this court held that, in making a factual determination, the
sentencing court may consider any reliable and relevant
information, including hearsay. United States v. Puckett, 61 F.3d
1092, 1095 (4th Cir. 1995); see also 18 U.S.C. § 3661 (2000); Fed.
R. Evid. 1101(d)(3). Since Crawford was decided, several circuits
have held that it did not make the Confrontation Clause applicable
to sentencing. See United States v. Chau, 426 F.3d 1318, 1323
(11th Cir. 2005); United States v. Roche, 415 F.3d 614, 618 (7th
Cir.), cert. denied, 126 U.S. 671 (2005); United States v. Luciano,
414 F.3d 174, 179 (1st Cir. 2005); United States v. Martinez, 413
F.3d 239, 243-44 (2d Cir. 2005), cert. denied, 126 S. Ct. 1086(2006). In light of these authorities, we discern no basis for
Cole’s claim that Crawford invalidates his waiver.
We grant Cole’s motions to file a pro se supplemental
brief. We have considered the issues raised in the pro se brief
and find them to be without merit. Therefore, we affirm the
district court’s findings concerning the sentence. Because the
district court did not reimpose the sentence, we remand the case
for the sole purpose of allowing the district court to reenter the
original judgment order nunc pro tunc. See United States v.
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Dodson, 291 F.3d 268, 272 (4th Cir. 2002) (“a criminal ‘judgment’
includes both a conviction and its associated sentence, so that a
‘judgment of conviction’ cannot be final . . . until both the
conviction and sentence . . . are final”). 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 AND REMANDED
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