United States v. Otto Taylor , 185 F. App'x 832 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15000 JUNE 20, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 01-00458-CR-WCO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTTO TAYLOR,
a.k.a. Cole,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 20, 2006)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Otto Taylor appeals his 360-month sentence imposed upon resentencing for
conspiracy to possess with intent to distribute cocaine and cocaine base, in
violation of 21 U.S.C. §§ 846, 841 (b)(1)(A)(ii) and (iii). Taylor asserts three
grounds for appeal: (1) the sentence imposed by the district court on remand was
unreasonable; (2) the district court violated his Fifth and Sixth Amendment rights
when it considered the sentence of another participant in the drug operation who
was charged in a separate indictment and sentenced by a different judge; and
(3) the district court violated his due process rights by using the preponderance of
the evidence standard to determine his sentence. Each issue is discussed in turn.
I. DISCUSSION
A. Reasonableness
Taylor asserts his 360-month sentence is unreasonable because the district
court gave undue weight to the 300-month sentence received by Marion Pitts,
another participant in the drug operation who was charged in a separate indictment
and sentenced by a different judge, and the district court imposed a sentence
substantially greater than necessary to achieve the sentencing goals in 18 U.S.C.
§ 3553(a).
Pursuant to the Supreme Court’s instructions in United States v. Booker, 125
S. Ct. 738 (2005), “we review a defendant’s ultimate sentence for reasonableness.”
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United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). “Before deciding
whether a sentence is reasonable, we first determine whether the district court
correctly interpreted and applied the Guidelines to calculate the appropriate
advisory Guidelines range.” Id. After correctly calculating the Guidelines range,
the district court may impose a more severe or lenient sentence as long as the
sentence is reasonable. Id. Factors to be considered in imposing a sentence
include the nature and circumstances of the offense, the history and characteristics
of the defendant, the need for adequate deterrence and protection of the public, the
pertinent Sentencing Commission policy statements, and the need to avoid
unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).
We conclude Taylor’s sentence is reasonable because the district court
correctly calculated the Guidelines range, and considered the factors of § 3553 in
coming to his ultimate sentence. As we noted in this case on its first appeal, the
district court correctly calculated Taylor’s Guidelines range of life imprisonment.
United States v. Taylor, 135 Fed. Appx. 387, 390 (11th Cir. 2005) (unpublished).
Thus, we turn to whether the ultimate sentence of 360 months’ imprisonment was
reasonable.
The district court specifically considered § 3553(a) factors before sentencing
Taylor, and gave detailed explanations as to Taylor’s punishment, including the
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need for Taylor’s punishment to act as a deterrent, the importance of protecting
society, and the disparate sentences among codefendants resulting from the
defendants’ different roles and levels of responsibility. Thus, the court’s
deliberations reflect consideration of: (1) the nature and circumstances of the
offense; (2) the need for the sentence imposed to reflect the seriousness of the
offense and to promote respect for the law; (3) the need to avoid unwarranted
sentencing disparities; and (4) the history and characteristics of the defendant. See
18 U.S.C. § 3553(a).
The district court considered the potential disparity between Taylor’s
sentence and his codefendants’ and co-participant Pitts’ sentences by explaining
Taylor was at “the top of the ladder” as to the distribution of drugs. There is no
evidence the court gave undue weight to co-participant Pitts’ 300-month sentence.
Moreover, Taylor’s arguments about the disparity between his sentence and those
of his other codefendants are unavailing in light of evidence that some of them
received reduction motions from the Government. His assertion the 360-month
sentence is “excess retribution” is also meritless when considering the sentence is
below the advisory Guidelines range of life imprisonment.
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B. Fifth and Sixth Amendment
Taylor asserts the district court’s consideration of Pitts’ sentence in relation
to Taylor’s sentence violated his Fifth Amendment due process rights to notice and
his Sixth Amendment right to confrontation since his attorney did not have access
to crucial facts that could have been used to differentiate Taylor’s and Pitts’ cases.
Taylor admits to introducing evidence about Pitts at sentencing but states he only
did so to show the Government had filed a motion to reduce Pitts’ sentence.
An alleged constitutional error in sentencing is reviewed de novo. United
States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005). “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const., amend. VI. However, the Sixth Amendment
right to confrontation is not a sentencing right in non-capital cases. Cantellano,
430 F.3d at 1146. The Fifth Amendment provides that “[n]o person shall be ...
deprived of life, liberty, or property, without due process of law.” U.S. Const,
amend. V. With respect to sentencing hearings, “the guidelines accommodate [due
process] demands by establishing an adversarial factfinding process, during which
a court may consider any information, including reliable hearsay, regardless of the
information’s admissibility at trial, provided that there are sufficient indicia of
reliability to support its probable accuracy,” and the defendant must have the
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opportunity to rebut the evidence or to generally cast doubt upon its reliability.
United States v. Castellanos, 904 F.2d 1490, 1495 (11th Cir. 1990); see also
U.S.S.G. § 6A1.3(a) (“[T]he court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial, provided
that the information has sufficient indicia of reliability to support its probable
accuracy”).
Taylor has not shown constitutional error. Taylor’s Sixth Amendment rights
were not violated because confrontation at trial is not a sentencing right in non-
capital cases. See Cantellano, 430 F.3d at 1146. Additionally, Taylor has not
shown Fifth Amendment due process error. Taylor’s reliance on United States v.
Reynoso, 254 F.3d 467 (3d Cir. 2001) is misplaced. Reynoso held “before a
sentencing court may rely on testimonial or other evidence from an earlier
proceeding, it must afford fair notice to both defense counsel and the Government
that it plans to do so.” Id. at 469. Unlike in Reynoso where the district court
introduced information from another trial without notice, Taylor, in connection
with his argument the district court should avoid sentencing disparities, was the
party that introduced information of Pitts as a “big guy” in the offense who
received a 300-month sentence with a pending motion to reduce the sentence.
Thus, there was no notice problem as the district court only relied on information
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regarding Pitts’ case which was provided by Taylor– that Pitts was serving a 300-
month sentence subject to reduction.
C. Preponderance of the Evidence
After acknowledging we rejected his standard of review argument in his
previous appeal, Taylor argues again the district court should have used a higher
standard of proof than preponderance of the evidence. See Taylor, 135 Fed. Appx.
at 390 n.2 (unpublished). Taylor does not dispute this same issue was decided in
his previous appeal and, in any event, the law regarding the evidentiary standard at
sentencing is clear. See United States v. Jackson, 57 F.3d 1012, 1019 (11th
Cir.1995) (holding a federal defendant’s due process rights are satisfied by the
preponderance of the evidence standard at sentencing); United States v. Robinson,
690 F.2d 869, 872 (11th Cir. 1982) (“Under the law of the case doctrine, both the
district court and the court of appeals generally are bound by findings of fact and
conclusions of law made by the court of appeals in a prior appeal of the same
case.”). Thus, we reject Taylor’s challenge to the district court’s application of the
preponderance of the evidence standard at sentencing.
II. CONCLUSION
We conclude Taylor’s 360-month sentence is reasonable, and the district
court did not violate his Fifth and Sixth Amendment rights when it considered the
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sentence of another participant in the drug operation who was charged in a separate
indictment and sentenced by a different judge. Additionally, the district court did
not violate Taylor’s due process rights by using the preponderance of the evidence
standard to determine his sentence. Thus, we affirm Taylor’s sentence.
AFFIRMED.
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