United States v. Jasper Land Holland , 148 F. App'x 890 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ September 16, 2005
THOMAS K. KAHN
No. 04-12828 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 03-00255-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASPER LAND HOLLAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(September 16, 2005)
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
This case is now before the Court on remand from the United States
Supreme Court for consideration of Holland’s sentence in light of United States v.
Booker, 543 U.S. 296, 125 S. Ct. 738 (2005). On direct appeal, we concluded that
because the circuits were split at the time, it was not obvious that Blakely v.
Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), applied to the Sentencing
Guidelines, and that Holland could not show plain error. United States v. Holland,
No. 04-12828, at 2-3 (11th Cir. Dec. 8, 2004) (unpublished). After review in light
of Booker, we reinstate our previous opinion and affirm Holland’s sentence.
I. BACKGROUND
A. Plea Colloquy
Jasper Land Holland pled guilty, without a written plea agreement, to
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
In the factual resume submitted to the district court in support of Holland’s guilty
plea, Holland admitted the following facts. On January 24, 2003, Holland
knowingly was in possession of a Remington, .30-60 caliber rifle, which was
manufactured in New York. The firearm had been reported stolen. Holland
pawned the firearm at a pawn shop in Alabama. Before Holland pawned the
firearm, he had been convicted in Virginia of bigamy, a felony.
B. PSI and Sentencing
2
The Presentence Investigation Report (“PSI”) recommended a base offense
level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6)(A). The PSI further recommended
(1) a two-level increase, pursuant to U.S.S.G. § 2K2.1(b)(4), because Holland
possessed a stolen firearm; and (2) a three-level reduction, pursuant to U.S.S.G.
§ 3E1.1, for acceptance of responsibility, for a total offense level of 13.
In calculating Holland’s criminal history score, the PSI included one point
for a 2000 state conviction for passing a worthless check. Another two points
were added, pursuant to U.S.S.G. 4A1.1(d), because, at the time of the instant
federal felon-in-possession offense, Holland was wanted on a probation violation
on a state offense.1 With a criminal history category of IV and an offense level of
13, Holland’s Guidelines range was 24-30 months’ imprisonment.
Holland objected to the PSI’s calculation of his criminal history points,
arguing that category IV over-represented his criminal history. Holland moved for
1
Under U.S.S.G. § 4A1.1(d), two points should be added to a defendant’s criminal history
category “if the defendant committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, imprisonment, work release, or escape
status.” U.S.S.G. § 4A1.1(d).
According to the commentary,
A defendant who commits the instant offense while a violation warrant from a prior
sentence is outstanding (e.g., a probation, parole, or supervised release violation
warrant) shall be deemed to be under a criminal justice sentence for the purposes of
this provision if that sentence is otherwise countable, even if that sentence would
have expired absent such warrant.
U.S.S.G. § 4A1.1(d) app. 4. Because Holland committed the instant felon-in-possession offense
while there was a warrant violation from a prior state sentence, Holland was deemed to be under
a criminal justice sentence for the purposes of the two-point increase under U.S.S.G. § 4A1.1(d).
3
a downward departure under U.S.S.G. § 4A1.3(b), based on this over-
representation. At sentencing, Holland raised no objection to the criminal history
calculation, but he moved again for a downward departure under U.S.S.G.
§ 4A1.3(b). Holland argued that without the worthless check conviction, for
which he received a year probation, his criminal history category would be III.
Holland did not raise any constitutional claim to a jury trial on his criminal history
calculation, and Holland did not raise any constitutional issue pursuant to
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
The district court concluded that there were no circumstances warranting a
downward departure, and sentenced Holland to 24 months’ imprisonment, the low
end of the Guidelines range.
C. Direct Appeal
In his prior direct appeal, Holland argued for the first time that the
Sentencing Guidelines were rendered unconstitutional by Blakely. As noted
above, this Court rejected that claim on direct appeal. Holland, No. 04-12828, at
2-3.
After our decision on direct appeal, the Supreme Court decided Booker, and
Holland filed a petition for a writ of certiorari in the Supreme Court. On June 6,
4
2005, the Supreme Court vacated our December 8, 2004 judgment and remanded
his case to this Court for further consideration in light of Booker.
II. DISCUSSION
Because Holland did not raise any constitutional issues in the district court
based on Apprendi, Blakely, or Booker, and instead raised these issues for the first
time in his prior direct appeal, our review of his sentence is only for plain error.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.
Ct. 2935 (2005).2
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). “[T]he 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.” Rodriguez, 398 F.3d at 1298. The statutory
error occurs when the district court sentences a defendant “under a mandatory
2
To establish plain error, the defendant must show “‘(1) error, (2) that is plain, and (3)
that affects substantial rights.’” Rodriguez, 398 F.3d at 1298 (quoting United States v. Cotton,
535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002)). “‘If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting Cotton,
535 U.S. at 631, 122 S. Ct. at 1785).
5
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).
We first conclude that there is no Sixth Amendment violation in this case
because Holland admitted to the facts that were used to calculate his criminal
history score.3 Holland received two points under U.S.S.G. § 4A1.1(d) because
the felon-in-possession offense was committed while Holland had an outstanding
warrant for a probation violation. The fact that there was an outstanding warrant
for a probation violation was included in Holland’s PSI, and Holland failed to
make any factual objections to the PSI. Thus, Holland admitted that there was an
outstanding probation violation, which was sufficient to trigger the two-point
increase in U.S.S.G. § 4A1.1(d). See United States v. Burge, 407 F.3d 1183, 1191
(11th Cir. 2005) (“Burge waived his objections to the factual statements about his
relevant conduct in the presentence report and, therefore, admitted the facts in that
report.”); see also Shelton, 400 F.3d at 1330 (concluding that because defendant
raised no objections to the factual statements in the PSI and stated that he did not
dispute matters in the PSI, the defendant admitted to the facts in the PSI and there
was no Sixth Amendment violation).
3
In Holland’s prior appeal, we assumed without deciding that the two points that were
added to Holland’s criminal history calculation pursuant to U.S.S.G. § 4A1.1(d) constituted a
sentencing enhancement. We continue to make that assumption here.
6
Holland also received a two-level enhancement pursuant to U.S.S.G. §
2K2.1(b)(4) because he possessed a stolen firearm. There is no Sixth Amendment
violation as to this enhancement either because Holland admitted in the factual
resume that the firearm was stolen.
Although there is no Sixth Amendment violation in this case, the district
court committed statutory Booker error in sentencing Holland under a mandatory
Guidelines regime. See Dacus, 408 F.3d at 688-89 (“The first prong of the plain
error test is easily satisfied. The district court erred when it sentenced Dacus
because it considered the Guidelines to be mandatory.”). Further, this error is now
plain under Booker. Id.However, Holland has failed to establish that any Booker error affected his
substantial rights. Rodriguez, 398 F.3d at 1301. In this case, the sentencing
record provides no basis for a conclusion that Holland has shown a reasonable
probability of a more lenient sentence under an advisory Guidelines regime. In
fact, the district court refused to depart downward. Further, although the district
court sentenced Holland at the low end of the Guidelines range, this Court has
held that “the fact that the district court sentenced the defendant to the bottom of
the applicable guidelines range establishes only that the court felt that sentence
was appropriate under the mandatory guidelines system. It does not establish a
7
reasonable probability that the court would have imposed a lesser sentence under
an advisory regime.” United States v. Fields, 408 F.3d 1356, 1361 (11th Cir.
2005). Finally, in his supplemental brief to this Court after remand, Holland
acknowledges that he cannot satisfy the third prong of plain-error review in this
Circuit. He states that he merely desires to preserve his Booker claim for further
review by the Supreme Court. Thus, we conclude that Holland has not satisfied
the third prong of plain-error review.
Accordingly, we reinstate all of our December 8, 2004 opinion affirming
Holland’s sentence.
SENTENCE AFFIRMED; OPINION REINSTATED.
8