United States v. Nathaniel Jones , 143 F. App'x 230 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 15, 2005
No. 04-16685 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20457-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHANIEL JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 15, 2005)
Before CARNES, MARCUS, and PRYOR, Circuit Judges.
PER CURIAM:
Nathaniel Jones appeals his sentences for possession of heroin with intent to
distribute and conspiracy to possess heroin with intent to distribute. See 21 U.S. C.
§§ 841(a)(1) and 846. Although the district court did not err when it enhanced his
sentence based on his previous convictions and facts admitted during the plea
colloquy, the court erred under United States v. Booker, 543 U.S. __, 125 S. Ct.
738 (2005), when it sentenced Jones under a mandatory guidelines scheme.
Because, as the government concedes, the statutory error was not harmless, we
vacate and remand for resentencing.
I. BACKGROUND
Jones and a co-conspirator, Alfred Smith, were indicted for conspiracy to
possess a controlled substance with intent to distribute it and possession of a
controlled substance with intent to distribute it. Jones pleaded guilty to both
crimes without the benefit of a plea agreement. At the plea change hearing, the
government stated that Jones and Smith agreed to sell 255 bags of heroin to a
confidential informant, but before the deal occurred, Smith noticed a car being
used by DEA agents for surveillance, and reentered his car. The agents then
apprehended Jones and Smith and found 255 bags of heroin in Jones’s car. The
bags contained 9 grams of heroin. In response to a question from the district court,
Jones stated that the proffer by the government was correct.
The Presentence Investigation Report originally set Jones’s base offense
level at 14, but because of two previous state convictions for drug trafficking,
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Jones was a career offender under section 4B1.1 of the Sentencing Guidelines. His
base offense level, therefore, was 32. The PSI recommended a downward
adjustment of 3 levels for acceptance of responsibility. Although Jones had only 6
criminal history points, because he was a career offender, he automatically had a
criminal history category of VI. The guideline range was 151 to 181 months.
Jones objected to the PSI on the grounds that Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2537 (2004), precluded the court from enhancing his sentence
based on facts not charged in the indictment. He also objected to application of the
career offender enhancement. At the sentencing hearing, the district court
overruled all of Jones’s objections and sentenced him to two concurrent terms of
151 months of imprisonment and 3 years of supervised release. Jones appealed.
II. DISCUSSION
Jones makes three arguments on appeal. He first contends that the
Sentencing Guidelines violate the Separation of Powers doctrine. Jones next
argues that his sentence violates the Eighth Amendment. His final argument is that
the district court erred under Booker when it enhanced his sentence under a
mandatory guidelines scheme based on facts that were not proved to a jury beyond
a reasonable doubt. We address each argument in turn.
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A. Separation of Powers
We review Jones’s argument that the Sentencing Guidelines violate the
Separation of Powers doctrine de novo. See Thompson v. Nagle, 118 F.3d 1442,
1447 (11th Cir. 1997). Although Jones does not explain his argument, he states in
his brief that he is relying on a district court opinion from Oregon, United States v.
Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004). In Detwiler, a district court in
Oregon found that the Feeney Amendment, contained in Section 401 of the
Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act,
amended the Sentencing Guidelines in a way that violates the Separation of Powers
doctrine because it united the power to prosecute and the power to sentence within
the executive branch. Id. at 1174-79. Mistretta v. United States, 488 U .S. 361,
109 S. Ct. 647 (1989), directly contradicts that position, and, in Booker, the
Supreme Court explicitly reaffirmed its analysis in Mistretta and rejected a
separation of powers argument against the application of the Sentencing
Guidelines. See 543 U.S. at __, 125 S. Ct. at 755. The Sentencing Guidelines do
not violate the Separation of Powers doctrine.
B. Eighth Amendment
We also review Jones’s argument that his sentence violates the Eighth
Amendment de novo. See Thompson, 118 F.3d at 1447. Much like his separation
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of powers argument, Jones does not explain how his sentence violates the Eighth
Amendment, but states that he is relying on an amicus brief filed in United States
v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004). Jones did not make the amicus
brief part of the record on appeal, but Angelos mentions its arguments. Id. at 1256.
Although it is close as to whether Jones properly preserved this argument on
appeal, we will address it.
In Angelos, the defendant, a first-time offender who was convicted of three
counts of possession of a firearm in connection with dealing marijuana, received a
sentence of 55 years. Id. at 1257. The defendant and amici apparently argued
“that the sentence [wa]s unconstitutional as disproportionate to the offenses at
hand.” Id. at 1256. Although the district court believed that the sentence violated
the Eighth Amendment, it followed the precedent of the Supreme Court in Hutto v.
Davis, 454 U.S. 370, 102 S. Ct. 703 (1982), where the defendant was sentenced to
40 years in prison for possessing nine ounces of marijuana, which was worth $200
in 1980. Id. at 1259.
Angelos does not help Jones. Unlike Angelos, Jones is a career offender.
Other than the instant conviction, he has two state convictions for drug trafficking.
The first conviction was in 1994 for possession of cannabis with intent to
distribute, and the second was in 2000 for possession of cocaine with the intent to
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distribute. He also had numerous other criminal convictions, although most were
relatively minor. In addition, Jones’s sentence was 151 months, significantly less
than the 55 year sentence imposed in Angelos. The sentence imposed was not a
violation of the Eighth Amendment.
C. Booker Error
Jones’s remaining argument has some merit. Jones argues that the district
court erred under Booker when it enhanced his sentence under a mandatory
guidelines scheme based on facts that were not proved to a jury beyond a
reasonable doubt. There are two kinds of sentencing errors based on Booker. The
first is constitutional error: “the Sixth Amendment right to trial by jury is violated
where under a mandatory guidelines system a sentence is increased because of an
enhancement based on facts found by the judge that were neither admitted by the
defendant nor found by the jury.” United States v. Rodriguez, 398 F.3d 1291,
1297 (11th Cir. 2005) (citations omitted). The second is statutory error: “[a]s a
result of Booker’s remedial holding, Booker error exists when the district court
misapplies the Guidelines by considering them as binding as opposed to advisory.”
Shelton, 400 F.3d at 1330-31.
Because Jones raised both constitutional and statutory error in the district
court, we review for harmless error. United States v. Mathenia, 409 F.3d 1289,
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1291 (11th Cir. 2005). Each type of Booker error requires a different standard of
review to determine whether the error was harmless. Booker constitutional error is
harmless when the government can show, beyond a reasonable doubt, that error did
not contribute to the ultimate sentence. Id. at 1292. Booker statutory error is
subject to a less demanding test. Id. A statutory error is harmless if, viewing the
proceedings in their entirety, the error did not affect the sentence or had only a
“very slight effect.” Id. If the sentence was not “substantially swayed” by the
error, then the sentence is due to be affirmed in spite of the error. Id.
The district court did not commit constitutional error under Booker when it
applied the career offender enhancement based on Jones’s previous convictions. In
Almendarez-Torres v. United States, 523 U.S. 224 118 S. Ct. 1219 (1997), the
Supreme Court concluded that recidivism is not a separate element of an offense
that the government is required to prove beyond a reasonable doubt. 523 U.S. at
247, 118 S. Ct. at 1232-33. Booker specifically excepted previous convictions
from its holding. See Booker, 543 U.S. at __, 125 S. Ct. at 756. Almendarez-
Torres remains binding precedent until the Supreme Court decides otherwise. See
Orduno-Mireles, 405 F.3d at 962-63 (11th Cir. 2005); Shelton, 400 F.3d at 1329.
Additionally, the district court did not commit constitutional error when it
enhanced his sentence based on facts admitted during the plea colloquy. In
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Shelton, we concluded that a sentence imposed based on facts that a defendant
admitted is not constitutional error. Id. at 1330. Not only did Jones not object to
the factual statement of the government, he stated that it was “correct.” The
proffer by the government included the allegation that Jones possessed with the
intent to distribute 255 bags of heroin, a total of 9 grams. The district court did not
commit constitutional error when it sentenced Jones based on that fact.
Although there was no constitutional error, the district court erred when it
sentenced Jones under a mandatory guidelines system. See Shelton, 400 F.3d at
1330-31. The government concedes that it cannot prove that the error did not
affect Jones’s sentence. There is nothing in the record to suggest that had the
district court known the guidelines were advisory, the district court would have
imposed the same sentence. The statutory error, therefore, was not harmless.
III. CONCLUSION
The district court erred when it sentenced Jones under a mandatory
guidelines scheme. Because the statutory error was not harmless, we vacate and
remand for resentencing.
VACATED AND REMANDED.
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