United States v. Faucette , 607 F. App'x 5 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1495
UNITED STATES OF AMERICA,
Appellee,
v.
MARKEVIN FAUCETTE,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Stahl and Barron,
Circuit Judges.
Elaine Mittleman on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
June 17, 2015
PER CURIAM. The defendant organized an operation which
transported a substantial amount of drugs to Lewiston, Maine. A
two-count indictment charged the defendant with conspiracy to
possess with intent to distribute 28 grams or more of cocaine base
(Count I) and possession with intent to distribute 28 grams or
more of cocaine base (Count II). The defendant pled guilty only
to Count I. The defendant's presentence investigation report (PSR)
incorrectly stated that he had pled guilty to both Count I and
Count II. The defendant failed to object to that error in the
PSR. His supplemental sentencing memorandum — submitted by new
counsel and not the lawyer who represented him at the Rule 11
hearing — also inaccurately represented that he had pled guilty to
both counts.
The PSR determined that the defendant's prior felony
convictions triggered career offender status, giving him Offense
Level 37 and Criminal History Category VI. See U.S.S.G. § 4B1.1.
After decreasing his total offense level by three for acceptance
of responsibility, see U.S.S.G. § 3E1.1, the PSR calculated the
defendant's guideline range at 262 to 327 months of imprisonment.
At sentencing, both the government and defense counsel affirmed
that they had no objections to the PSR's guideline calculation.
The district court sentenced the defendant to 200 months in prison
— below the career offender range — and eight years of supervised
release on both Counts I and II, to be served concurrently. The
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court imposed a $200 special assessment, $100 for each count. Both
the government and defense counsel failed to catch the district
court's error sentencing the defendant on Count II when he only
pled to Count I, and the district court entered judgment against
the defendant on both counts.
As the government concedes, the district court erred
when it entered judgment against the defendant on both counts.
Thus, we remand this action and direct the district court to vacate
the concurrent term of imprisonment, supervised release, and
second $100 special assessment imposed on Count II, and to dismiss
Count II of the indictment.1
So ordered.
1
The defendant also asks this court to remand for the district
court to resentence him under the Sentencing Commission's
Amendment 782, which decreased applicable base offense levels for
many drug violations. See U.S.S.G. App. C, Amends. 782, 788 (Nov.
1, 2014). Such a directive from this court is not in order. In
the first place, the proper course for "a defendant who seeks
resentencing under a retroactive guideline amendment is to file a
motion in the district court." United States v. Jones, 778 F.3d
375, 390 (1st Cir. 2015). In any event, as the district court
observed during the defendant's sentencing hearing, Amendment 782
does not affect his sentence because his career offender status
dictated his base offense level calculation, not the quantity of
drugs involved in the offense. Compare U.S.S.G. § 4B1.1, with
U.S.S.G. § 2D1.1. To the extent that the defendant seeks
resentencing on other grounds — an argument that is sparse at best
and appears only in his reply brief — he cites no controlling
authority warranting a remand for resentencing on Count I.
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