United States v. Chad Christopher Pyne , 151 F. App'x 901 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 30, 2005
No. 04-14589
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00016-CR-5-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
versus
CHAD CHRISTOPHER PYNE,
Defendant-Appellant-
Cross-Appellee.
_______________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(September 30, 2005)
Before BIRCH, HULL and BOWMAN *, Circuit Judges.
*
Honorable Pasco M. Bowman, II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
PER CURIAM:
Chad Christopher Pyne appeals his 200-month sentence for conspiracy to
manufacture, distribute, and possess with intent to distribute more than 50 grams of
methamphetamine and more than 500 grams of a mixture and substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii) and 846, and his
concurrent 120-month sentence for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Relying on United States v.
Booker, 543 U.S. , 125 S. Ct. 738 (2005), Pyne argues that the district court erred
when it sentenced him under a mandatory Sentencing Guidelines scheme. The
government cross-appeals the district court’s grant of a downward departure under
the Guidelines and its refusal to sentence Pyne as a career offender. After review,
we vacate Pyne’s sentences and remand for resentencing.
I. BACKGROUND
A. Plea Colloquy
Pyne pled guilty to the above drug conspiracy and firearm charges. During
the plea colloquy, the government filed a statement of facts, which Pyne admitted as
true. In that statement, the government explained that the Bay County, Florida,
Sheriff’s Office executed a state search warrant for the premises of Kim Brown at
2606 Beech Street, Panama City Beach, Florida, on November 19, 2003. During
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the execution of the warrant, the agents discovered chemicals and laboratory
instruments in Brown’s garage. Brown advised the agents that the items belonged
to her boyfriend, Pyne. When Pyne arrived at the premises during the search, his
person and vehicle were searched. The agents discovered: (1) approximately one
gram of methamphetamine inside one of his pockets; (2) approximately1100 grams
of methamphetamine oil in a backpack on the back seat of his vehicle; and (3) a
Bryco Arms .380 pistol in a black case in the hatchback of his vehicle.
After Pyne was advised of his rights, he admitted to operating another
laboratory at his residence, 8315 Gulf Pines Drive, Panama City Beach, Florida, and
consented to its search. At his residence, the agents found approximately 98
containers of liquids, more than two grams of methamphetamine, and various
chemicals and instruments used in the manufacture of methamphetamine. The
government’s statement of facts cited taped statements in which Pyne admitted that
he: (1) had cooked approximately ten grams of methamphetamine almost every day
at his residence for about a month and at another location for about four months; (2)
owned the laboratories found both on Beech Street and on Gulf Pines Drive and the
methamphetamine oil found in his vehicle; and (3) had obtained the .380 pistol
about four months earlier. The statement of facts also indicated that Pyne had a
prior felony state conviction for an attempted home invasion and that the pistol had
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been manufactured outside Florida.
During the plea hearing, Pyne admitted that he had “bought the chemicals to
make the drug[,] . . . made the drug and . . . sold it.” He also admitted that he was
aware that the pistol was “in the back of [his] car” and that he had a previous felony
conviction. Pyne acknowledged that he understood that the Sentencing Guidelines
applied and “that the district court w[ould] make the final determination of facts as
to any sentencing issue.” The district court then accepted Pyne’s guilty plea.
B. Presentence Investigation and Sentencing
The Presentence Investigation Report (“PSI”) recommended a base offense
level of 33.1 The PSI also noted that the career offender provision, U.S.S.G.
§4B1.1, applied because Pyne had two previous, unrelated felony convictions
involving crimes of violence, specifically attempted home invasions. Career
offender status increased Pyne’s offense level from 33 to 37 and his criminal history
category from IV to VI. See U.S.S.G. §4B1.1(b) . The PSI also recommended a
three-point offense level reduction for acceptance of responsibility. See U.S.S.G.
§3E1.1. With a total offense level of 34 and a criminal history category of VI,
1
The relevant Guidelines are those in effect at the time of Pyne’s sentencing hearing, unless
a more lenient punishment would result under the Guidelines effective on the date of Pyne’s
offenses. 18 U.S.C. 3553(a)(4)(A); United States v. Wilson, 993 F.2d 214, 216 (11th Cir. 1993).
The PSI does not mention which Guidelines version was used; however, because Pyne was
sentenced on August 19, 2004, he should have been sentenced under the 2003 Guidelines. All
Guidelines citations herein are to the 2003 Guidelines.
4
Pyne’s Guidelines range was 262 to 327 months’ imprisonment. Pyne filed no
objections to the PSI but moved for a finding that the Guidelines were
unconstitutional, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531(2004), and seeking to be sentenced without regard to the Guidelines.
At sentencing, the district court overruled Pyne’s Blakely objection and
found that the attempted home invasions were related, but that the career offender
provision still applied because the second offense involved a crime of violence.
The district court then effectively granted a downward departure from criminal
history category level VI to category IV, finding Pyne’s criminal history was
overstated, as follows:
Despite my finding of a career offender status in Mr. Pyne’s case, I
find that the sentence range of 262 to 327 months overrepresents Mr.
Pyne’s criminal history. . . . Mr. Pyne has several incidents of criminal
history, but they do not rise to the level in my opinion to support a
sentence in that guideline range. We have stolen property less than
$100, disorderly conduct, misdemeanor, first one was a misdemeanor,
attempted home invasion, and both of the attempted home invasions. . .
involved Mr. Pyne entering into a residence that was owned by some
family friend or someone that he was close to and knew and that no
one was home during either incident. . . . And the first home invasion,
he took $255 and a . . . bicycle, and the second he took $85 and a
backpack. I can’t find that this rises to the level to support a career
offender sentence. . . .
And I can’t, in good conscience, sentence someone to even 262
months with that criminal history. So I am going to depart downward
from the guideline range in this case, and I do so for those reasons.
However, I am guided in the sentence that I am going to impose by the
offense level and criminal history category that would apply if Mr.
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Pyne was not found to be a career offender and that would be an
offense level of 33 with a criminal history category of four, sentencing
range of 188 to 235 months.
Although the government objected to the grant of a downward departure, the district
court responded that it was “floored” that the attempted home invasion would
qualify as a crime of violence for purposes of Pyne’s criminal history and, when
considering that crime and Pyne’s “other criminal history, which consists of nothing
but misdemeanors,” the court could not “in good conscience sentence this man to
262 months, and [was] not going to do so.”
The district court sentenced Pyne to concurrent sentences of 200 months’
imprisonment for his drug conspiracy offense and 120 months’ imprisonment for
his firearms offense. The district court noted that it had “carefully considered the
factors set out in 18 U.S.C. [§] 3553[(a)], including the applicable guidelines and
policy statements issued by the Sentencing Commission.” The district court stated
that the imposed sentences would sufficiently punish Pyne for his “criminal conduct
while also serving as a general and specific deterrent to others who might engage in
similar-type conduct.”
Pyne and the government appealed. On appeal, Pyne requests that we
remand for resentencing, arguing that the district court erred by relying on the
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Sentencing Guidelines because they were rendered unconstitutional by Booker.2
The government argues that any Booker error was harmless, but maintains that the
district court erred by refusing to sentence Pyne as a career offender and by
granting the downward departure from criminal history category VI to category IV.
II. STANDARD OF REVIEW
Because Pyne timely raised his Blakely objection in district court, we review
his Booker challenge to his sentence de novo, reversing if the government fails to
show that any error was harmless. See United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005).
When reviewing a downward departure under the Sentencing Guidelines, we
review factual findings for clear error and the application of the Guidelines to those
facts de novo. United States v. Kapelushnik, 306 F.3d 1090, 1093 (11th Cir. 2002).
If there is a legal basis for the downward departure under the Guidelines, we
generally do not review the district court’s exercise of discretion in determining the
extent of the departure. United States v. Head, 178 F.3d 1205, 1206 n.3 (11th Cir.
1999).
III. DISCUSSION
2
In Booker, the Supreme Court held that Blakely applies to the United States Sentencing
Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th Cir.), cert. denied, 125 S. Ct.
2935 (2005). Although Pyne initially argued that the district court erred in light of Blakely, he
supplemented his argument citing Booker.
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A. Booker Error
“Under Booker, there are two kinds of sentencing errors: one is
constitutional and the other is statutory.” United States v. Dacus, 408 F.3d 686, 688
(11th Cir. 2005) (per curiam). The constitutional error occurs “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, 1298 (11th Cir.),
cert. denied, 125 S. Ct. 2935 (2005) (emphasis omitted). The statutory error occurs
when the district court sentences a defendant “under a mandatory Guidelines
scheme, even in the absence of a Sixth Amendment enhancement violation.”
United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Pyne concedes that there has been no constitutional error in this case, but
argues that the district court committed statutory Booker error warranting
resentencing. The government agrees both that there has been no constitutional
error and that statutory Booker error did occur. Thus, the only Booker issue is
whether the government carried its burden to show that the Booker error was
harmless. Paz, 405 F.3d at 948.
A Booker statutory error is harmless only “if, viewing the proceedings in
their entirety, a court determines that the error did not affect the sentence, or had but
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very slight effect. If one can say with fair assurance that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.” United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)
(per curiam) (quotation marks, citations and punctuation omitted). Here, the district
court expressed great concern about the Guidelines’ mandatory requirement that it
sentence Pyne with the range of 262-327 months. In fact, the district court
fashioned a unique downward departure -- one not authorized by the Guidelines --
in an effort to circumvent the mandatory Guidelines range of 262-327 months. It is
abundantly clear from the sentencing record that the district court would have
considered another sentence but for the mandatory nature of the Guidelines. Thus,
the government has not shown that the Booker error was harmless, and we therefore
vacate Pyne’s sentence and remand for resentencing.
B. Guidelines Calculations on Remand
Following Booker, district courts, while not bound by the Sentencing
Guidelines, must continue to consult the provisions of the Sentencing Guidelines
and consider them in sentencing. United States v. Crawford, 407 F.3d 1174, 1178
(11th Cir. 2005); United States v. Jordi, 418 F.3d 1212, 1215 (11th Cir. 2005).
“This consultation requirement, at a minimum, obliges the district court to calculate
correctly the sentencing range prescribed by the Guidelines.” Crawford, 407 F.3d
9
at 1178. Further, “[a] misinterpretation of the Guidelines by a district court
effectively means that the district court has not properly consulted the Guidelines.”
Id. (quotation marks, citations and punctuation omitted). “[A]pplication of the
guidelines is not complete until the departures, if any, that are warranted are
appropriately considered. . . .If the district court failed in [correctly applying the law
in determining the applicability of the departure], it by necessity failed to properly
consider the guidelines.” Jordi, 418 F.3d at 1215. Given that the government has
cross-appealed the district court’s downward departure and its failure to consider
Pyne as a career offender, we discuss these two Guidelines issues in order to allow
the district court to calculate properly the Guidelines range on remand.
First, we address the downward departure. The government has shown that
there was no legally permissible basis in the Guidelines for the district court’s
downward departure from criminal history category VI to category IV. We
recognize that the Sentencing Guidelines allow for a downward departure where
“the defendant’s criminal history category substantially over-represents the
seriousness of the defendant’s criminal history.” U.S.S.G. §4A1.3(b)(1).3
However, where the defendant is a career offender, such departure may not exceed
3
U.S.S.G. §4A1.3(b)(1) states: “STANDARD FOR DOWNWARD DEPARTURE.—If
reliable information indicates that the defendant’s criminal history category substantially over-
represents the seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit other crimes, a downward departure may be warranted.”
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one criminal history category. U.S.S.G. § 4A1.3(b)(3)(A).4 Moreover, the district
court erred by basing its §4A1.3(b)(1) downward departure at least in part on the
underlying facts of Pyne’s prior convictions, rather than on their timing or pattern.
See United States v. Rucker, 171 F.3d 1359, 1363 (11th Cir. 1999) (district court
may not base a downward departure on the court’s view that defendant’s prior
convictions involved relatively minor crimes).
Second, we address Pyne’s classification as a career offender. Under
U.S.S.G. §4B1.1, “[a] defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” For purposes of determining career offender status, a defendant has “two
prior felony convictions” if (1) the defendant’s prior convictions were for “either a
crime of violence or a controlled substance offense,” and (2) “the sentences for at
least two of the aforementioned felony convictions are counted separately under the
provisions of §4A1.1(a), (b), or (c).” U.S.S.G. §4B1.2(c) (emphasis added).
4
U.S.S.G. §4A1.3(b)(3)(A) states: “LIMITATION ON EXTENT OF DOWNWARD
DEPARTURE FOR CAREER OFFENDER.—The extent of a downward departure under this
subsection for a career offender within the meaning of §4B1.1 (Career Offender) may not exceed
one criminal history category.”
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Thus, the career offender provision in §4B1.2(c) refers back to counting
under §4A1.1, which governs assessment of points to determine a defendant’s
criminal history category. Only unrelated convictions are counted separately under
§4A1.1(a), (b), or (c). U.S.S.G. §4A1.2(a)(2). Therefore, to qualify for career
offender status, Pyne’s two prior convictions must be unrelated. See United States
v. Duty, 303 F.3d 1240, 1241 (11th Cir. 2002) (“To qualify as two prior felony
convictions [for the purpose of career offender status], the prior offenses must be
unrelated”); United States v. Vasquez, 389 F.3d 65, 73 (2d Cir. 2004) (“‘related’
felony convictions count as one for purposes of the career offender guideline”);
United States v. Martins, 413 F.3d 139, 151 (1st Cir. 2005) (same).
Pyne was classified as a career offender based on his two prior convictions
for attempted home invasion, offenses that the original PSI classified as unrelated.
Although these two felonies are “crimes of violence” for purposes of the
Guidelines, see U.S.S.G. §4B1.2(a)(2), there is a question in this case as to whether
the convictions are related and thus his sentences on them are not counted
separately under §4A1.1(a), (b) or (c), but rather his second conviction is counted
under §4A1.1(f). 5
5
“Prior sentences imposed in related cases are to be treated as one sentence for purposes of
§4A1.1(a), (b), and (c).” U.S.S.G. §4A1.2(a)(2). Where two violent felonies are related, the first
is counted under §4A1.1(a), (b), or (c), while the second is counted under §4A1.1(f). See also
U.S.S.G. § 4B1.2, cmt. n. 3 (“The provisions of §4A1.2 (Definitions and Instructions for Computing
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At sentencing, Pyne argued that his two prior convictions were related for
the purpose of computing criminal history points because the convictions were
consolidated for sentencing. The PSI indicates that (1) Pyne’s two attempted home
invasions occurred on August 15, 1996, and August 21, 1996, respectively; (2)
Pyne was arrested for these offenses on August 22, 1996; and (3) the sentencing
hearing for both offenses was held on October 16, 1996. According to the
Guidelines, in the context of computing criminal history points, “[p]rior sentences
are not considered related if they were for offenses that were separated by an
intervening arrest. . . . Otherwise, prior sentences are considered related if they
resulted from offenses that . . . were consolidated for trial or sentencing.” U.S.S.G.
§4A1.2, cmt. n. 3.
The government argued that despite the consolidation of Pyne’s two home
invasion felonies for sentencing, the offenses were separated by an intervening
arrest and should therefore be classified as unrelated convictions. The
government’s argument was based on the PSI’s statement that Pyne had been
arrested in between his commission of the first and second attempted home
invasions. According to the PSI, on August 20, 1996, police were dispatched to
Criminal History) are applicable to the counting of convictions under §4B1.1 [i.e., the career
offender provision].”).
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break up a fight in which Pyne was involved.6 On October 22, 1996, Pyne pled
guilty to a disorderly conduct charge arising from the fight and served ten days in
county jail. Because the fight occurred after Pyne’s August 15, 1996 offense but
before his August 21, 1996 offense, the government argued that the two offenses
were “separated by an intervening arrest” and were therefore not related.
Although the PSI lists August 20, 1996 as the “date of arrest” for Pyne’s
disorderly conduct citation, the Probation Officer orally clarified at the sentencing
hearing that Pyne was never arrested for the August 20, 1996 disorderly conduct
incident; he was merely cited. Based on this testimony, the district court found that
the disorderly conduct citation did not constitute an “intervening arrest” and that the
two attempted home invasions were therefore related.
Because Pyne’s two prior convictions were related, the district court then
reduced Pyne’s criminal history points from eight to seven points.7 The Guidelines
problem as to Pyne’s career offender status arises because the court’s holding that
6
In one place, the PSI states incorrectly that the incident occurred on April 20, 1996; the
remainder of the PSI and the sentencing hearing make clear that August 20, 1996 is the correct date.
7
The district court explained that the disorderly conduct citation “is not an intervening event
for purposes of 4A1.1(f) . . . however, because the second [attempted home invasion] is – or does
constitute a crime of violence, it will be scorable with one [criminal history] point as opposed to the
two that were given.” Based on this change, the district court assessed Pyne with seven criminal
history points, as opposed to the eight originally assessed by the PSI. See also U.S.S.G. §4A1.1(f)
(assigning one criminal history point for a crime of violence related to another crime already
scored).
14
Pyne’s prior convictions were “related” for purposes of calculating his criminal
history points also potentially impacts his career offender status. The district court
appears to have believed that whether or not the attempted home invasions were
“related” affected only the calculation of Pyne’s criminal history points and not the
determination of his career offender status.
We say potentially because there is some confusion in the record regarding
when or whether Pyne was arrested for the disorderly conduct offense or the first
home invasion offense. This confusion makes it unclear whether Pyne’s attempted
home invasions were separated by an intervening arrest and therefore whether the
offenses were unrelated or related. There is also uncertainty as to whether any of
Pyne’s other convictions than the attempted home invasions would qualify Pyne for
career offender status. Because there is ambiguity in the record concerning the
circumstances of Pyne’s prior convictions and concerning the district court’s
relevant findings, we conclude that the career offender issue should be addressed by
the district court in the first instance at the new sentencing hearing. Both parties
should be given the opportunity on remand to present anew evidence and briefs
relevant to whether Pyne has two prior convictions that qualify him for career
offender status.
IV. CONCLUSION
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In summary, because the district court committed statutory Booker error and
the government did not show that error to be harmless, we vacate Pyne’s sentence
in its entirety and remand for resentencing under an advisory Guidelines regime.
On remand the district court shall determine whether Pyne is a career offender and
shall properly calculate the Guidelines range in accordance with that finding. The
district court shall then sentence Pyne under an advisory Guidelines regime,
considering both the properly calculated Guidelines range and other statutorily
permissible sentencing considerations. See 18 U.S.C. § 3553(a); Booker, 125
S.Ct. at 757.8
VACATED and REMANDED.
8
We do not decide the reasonableness of any particular sentence in this case, whether falling
within a properly calculated Guidelines range or not. Further, nothing herein should be construed
as indicating whether Pyne is or is not a career offender; that issue should be reviewed ab initio by
the district court.
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