United States v. William Lewis Cash , 131 F. App'x 200 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 10, 2005
No. 04-14189
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 00-00008-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM LEWIS CASH,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(May 10, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
William Lewis Cash appeals his conviction and sentence for conspiracy to
distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(ii) and 846, and possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Cash is pursuing this
appeal after the district court granted in part his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct sentence, finding Cash’s counsel provided ineffective
assistance by failing to file a notice of appeal on his behalf. After finding Cash
was entitled to an out-of-time direct appeal, the district court followed the
procedure we outlined in United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir.
2000), vacating the original judgment and reimposing the same sentence. Cash
timely appealed from the reimposed judgment. We vacate and remand for
resentencing.
I. DISCUSSION
Cash argues in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and
United States v. Booker, 125 S. Ct. 738 (2005), the district court erred in
attributing 500 grams of cocaine to him and sentencing him under a mandatory
guidelines system. Cash asserts he admitted only to a drug quantity of 480.6
grams of cocaine, and asserts the district court erred under Blakely in attributing
2
500 grams to him. He claims this judicial finding resulted in an increased
sentencing guidelines range.
Because Cash objected to the finding of drug quantity in the district court,
we review the sentence de novo. United States v. Paz, 11th Cir., 2005, __ F.3d __
(No. 04-14829, Apr. 5, 2005). “We will reverse the district court only if any error
was harmful.” Id. We have clarified there are two types of Booker error: (1) Sixth
Amendment error based upon sentencing enhancements neither admitted by the
defendant nor submitted to a jury and proven beyond a reasonable doubt; and
(2) error based upon sentencing under a mandatory guidelines system. United
States v. Shelton, 400 F.3d 1325, 1329–1334 (11th Cir. 2005). We address each
type of error in turn.
A. Sixth Amendment
There is no Sixth Amendment error under Booker where the defendant has
admitted to facts later used by the district court to enhance his sentence, whether at
the plea hearing, in the PSI, or at sentencing. Id. at 1330. At the plea hearing,
when given a chance to present his own version of the facts, Cash admitted to the
district court that he had paid the undercover officer $8,000 (with an additional
$2,000 to be paid at a later date) for a half kilogram, or 500 grams, of cocaine.
Cash asserts the actual quantity of drugs delivered by the Government to him in
3
the undercover “reverse sting” operation was only 460.8 grams. However, the fact
the amount actually delivered was less than the agreed-upon amount is of no
consequence. In a “reverse sting” operation where an undercover officer sells
narcotics to a defendant, the quantity of drugs attributable to the defendant is the
quantity agreed upon, not the quantity actually delivered. See U.S.S.G. § 2D1.1,
comment. (n. 12) (“[I]n a reverse sting, the agreed-upon quantity of the controlled
substance would more accurately reflect the scale of the offense because the
amount actually delivered is controlled by the government, not by the
defendant.”); see also United States v. Chirinos, 112 F.3d 1089, 1103 (11th Cir.
1997) (affirming sentences based upon a finding of 300 grams of cocaine, where
no cocaine actually existed but where the appellants believed they would be
stealing 300 grams of cocaine, based upon U.S.S.G. § 2D1.1, comment. (n.12)).
Because Cash admitted he intended to purchase a half kilogram, or 500 grams, of
cocaine from the undercover officer, and because the district court attributed only
that quantity to Cash, no Sixth Amendment violation based upon judicial
factfinding occurred.
B. Mandatory Nature of the Guidelines
The Supreme Court has now excised the mandatory nature of the
Guidelines. See Shelton, 400 F.3d at 1330. Thus, there is Booker error in this case
4
because the district court sentenced Cash under a mandatory Guidelines system,
even in the absence of a Sixth Amendment enhancement violation. See id. at
1330–31.
Under harmless error review, the Government has the burden of persuasion
with respect to prejudice or the effect on substantial rights. United States v.
Monroe, 353 F.3d 1346, 1352 (11th Cir. 2003). In other words, the Government
must show the absence of prejudice to the defendant. United States v. Fern, 155
F.3d 1318, 1327 (11th Cir. 1998). Thus, the Government must show there is no
prejudice to Cash, i.e. there is no reasonable probability of a different result under
a non-mandatory Guidelines scheme. Cf. United States v. Rodriguez, 398 F.3d
1291, 1301 (11th Cir.), petition for cert. filed, 73 U.S.L.W. 3531 (Feb. 23, 2005).
Here, the Government has not and cannot show an absence of prejudice to
Cash. The district court stated at resentencing, in regard to Blakely, “I have not
revisited the sentencing issue. I have not made a determination of whether the
same sentence would have been imposed had Blakely invalidated the sentencing
guidelines.” Thus, the error of sentencing Cash under a mandatory Guidelines
5
scheme is not harmless. Accordingly, we vacate Cash’s sentence in its entirety
and remand for resentencing consistent with Booker.1
VACATED AND REMANDED.
1
Because we are vacating and remanding Cash’s sentence in its entirety, we do not address
whether the district court erred in failing to conduct a de novo resentencing, as the district court will
conduct a de novo resentencing on remand.
Additionally, we find the record is not sufficiently developed to address Cash’s ineffective
assistance of counsel claim, which has not been raised in the district court. See United States v.
Camacho, 40 F.3d 349, 355 (11th Cir. 1994). We therefore decline to address that issue.
6