United States v. Franklin James Love , 136 F. App'x 215 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 6, 2005
No. 04-15347
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00001-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKLIN JAMES LOVE,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Southern District of Georgia
_________________________
(May 6, 2005)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Franklin James Love appeals his 70-month sentence for transportation of
child pornography, in violation of 18 U.S.C. § 2252A(a)(1) (2005). On appeal,
Love argues: (i) that the district court failed to resolve factual disputes regarding
the Presentence Investigation Report (“PSI”), violating Rule 32(i)(3)(B) of the
Federal Rules of Criminal Procedure ; and (ii) that the district court violated
Blakely v. Washington, 124 S.Ct. 2531 (2004) when it enhanced his sentence
based on judicially-determined facts that were neither admitted nor proven to a
jury. We need not reach Love’s Rule 32 contentions, as his preserved Blakely
(now Booker) claim requires that we vacate his sentence and remand for
resentencing.
BACKGROUND
Love pled guilty to transporting child pornogrophy, in violation of 18
U.S.C. § 2252A(a)(1), and to criminal forfeiture of the computer which he used in
transmitting the pornography, pursuant to 18 U.S.C. § 2253(a). Love’s PSI
calculated his base offense level at 17, but added a two-level increase based on a
finding that the pornography involved a minor younger than age 12, under §
2G2.2(b)(1) of the guidelines. The PSI then included an additional five-level
increase, concluding that the pornographic material was distributed to an
individual Love thought was a minor. See U.S.S.G. § 2G2.2(b)(2)(c). The PSI
recommended a further four-level increase based on a characterization of the
pornography as “sadistic” within the meaning of § 2G2.2(b)(3). Finally, the PSI
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suggested a two-level increase because a computer was used to transmit the
material, per § 2G2.2(b)(5). With the enhancements, as well as a three-level
reduction for acceptance of responsibility, the offense level stood at 27. With a
criminal history category of I, that resulted in a guidelines range of 70 to 87
months.
Love objected to the offense-level enhancements both on factual grounds
and on the basis of Blakely, which he argued required the factual basis for the
enhancements to be proven to a jury. Though the district court adopted the PSI’s
findings of fact, the court expressed serious misgivings about the length of the
guidelines sentencing range, stating that “if there were any way for me to depart in
this case, I would.” Finding no permissible basis for a departure, the court
ultimately sentenced Love to 70 months, the minimum sentence permissible under
the guidelines. Love appealed.
STANDARD OF REVIEW
Because Love made his Blakely objection before the district court,
preserving it for appellate review, we review his sentence de novo, but will reverse
only for harmful error. United States v. Riley, 250 F.3d 1303, 1307 n.5 (11th Cir.
2001).
DISCUSSION
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The Sixth Amendment requires that “any fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict . . . be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” United States v.
Booker, 125 S.Ct. 738, 756 (2005). In order to render the federal sentencing
guidelines compatible with the Sixth Amendment’s jury trial guarantee, Booker
excised the provision of the federal sentencing statute that made the guidelines
mandatory. Booker, 125 S.Ct. at 764-65. Thus, we have held that even where
there is no Sixth Amendment violation, sentencing a defendant under the prior
mandatory guidelines system, standing alone, represents statutory Booker error.
United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
In this case, Love’s sentence was infected by both constitutional and
statutory Booker error. His offense level was increased based on judicial findings
as to the “sadistic” content of the pornography he transported, the age of those
depicted in the pornography, and the age of the recipient of the pornography.
Love admitted none of those facts, nor were they proven to a jury. Furthermore,
though Love admitted the use of a computer, the sentence enhancement based on
transmitting the pornography via computer was administered under a mandatory
guidelines system.
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Because Love has preserved his Booker claim, we must reverse unless we
find the Booker error harmless beyond a reasonable doubt. United States v. Paz,
No. 04-14829, 2005 U.S. App. LEXIS 5380 at *4-5 (11th Cir. April 5, 2005). The
government’s brief concedes that in light of the district court’s express desire to
impose a less severe sentence than the guidelines mandated, the error is not
harmless. As such, we vacate the district court’s judgment and remand for
resentencing.
VACATED AND REMANDED.
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