United States v. Topaz Craig Darden , 186 F. App'x 887 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13924 JUNE 26, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00288-CR-1-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOPAZ CRAIG DARDEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 26, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Topaz Craig Darden appeals his conviction and sentence for possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g). First, Darden argues that the
district court erred in not allowing him to introduce as evidence medical records
from the day of his arrest or records of a 911 call made by a witness to his arrest,
both of which indicated that Darden may have been assaulted by police during his
arrest. Darden sought to introduce this evidence and impeach the trial testimony of
his arresting officer. Second, Darden asserts that the district court erred in not
granting his request for a mistrial after a witness testified that Darden was on
probation at the time of his arrest. Third, Darden contends that the district court
erred in sentencing him under the Armed Career Criminal Act (“ACCA”), when
the prior convictions upon which the court relied in enhancing his sentence were
not charged in his indictment or proven to a jury beyond a reasonable doubt.
Finally, Darden argues that the district court erred in concluding that, even after
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it
could not sentence him below the Guideline range because our decision in United
States v. Rucker, 171 F.3d 1359 (11th Cir. 1999), limited its discretion.
Admission of Medical Records and 911 Call
We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir. 2005), cert. denied, __
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S.Ct. __ (Feb. 21, 2006). Furthermore, we will only reverse a district court’s
evidentiary rulings for harmful error. See United States v. Wilson, 578 F.2d 67, 68
(5th Cir. 1978).
Hearsay is a statement, other than one made by the declarant while testifying
at trial, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid.
801(c). As a general rule, hearsay is not admissible except as provided by the
hearsay exceptions. Fed.R.Evid. 802. Federal Rule of Evidence 803(4) defines a
hearsay exception for statements made for the purpose of medical diagnosis or
treatment in this way:
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or
treatment.
Fed.R.Evid. 803(4). The advisory committee notes to this rule give the following
explanation as to the scope of the rule:
[Fed.R.Evid. 803(4)] also extends to statements as to causation,
reasonably pertinent to [purposes of diagnosis or treatment], in accord
with the current trend. Statements as to fault would not ordinarily
qualify under this latter language. Thus a patient’s statement that he
was struck by an automobile would qualify but not his statement that
the car was driven through a red light.
Fed.R.Evid. 803(4) advisory committee’s note (citations omitted).
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The statement in Darden’s medical records that he was beaten by police
contains a mixture of admissible and inadmissible evidence because, while the
statement that Darden was “beaten” goes to cause, the statement that he was beaten
“by the cops” goes to the fault of his injuries. See Fed.R.Evid. 803(4) and advisory
committee’s note. Nevertheless, the district court did not abuse its discretion in
denying the admission of Darden’s medical records because the records did not
contradict his arresting officer’s trial testimony, and thus would not have served
any impeachment purpose. Likewise, the statement from an unidentified 911 caller
that police were jumping on Darden at the time of his arrest did not contradict the
arresting officer’s testimony about how he arrested Darden.
Motion for a Mistrial
We review a district court’s refusal to grant a mistrial for an abuse of
discretion. United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998). “The
decision of whether to grant a mistrial lies within the sound discretion of a trial
judge as he or she is in the best position to evaluate the prejudicial effect of
improper testimony.” United States v. Perez, 30 F.3d 1407, 1410 (11th Cir. 1994).
“When a curative instruction has been given to address some improper and
prejudicial evidence, we will reverse only if the evidence is so highly prejudicial as
to be incurable by the trial court’s admonition.” United States v. Harriston, 329
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F.3d 779, 787 n.4 (11th Cir. 2003) (quotation omitted).
The district court did not abuse its discretion by denying Darden’s motion
for a mistrial because the comment made by a witness at trial that Darden was on
probation at the time of his arrest was not incurably prejudicial. The district court
instructed the jury to disregard this remark. In addition, the parties stipulated
before the jury that Darden had a prior felony conviction. In light of the district
court’s instruction and the parties’ stipulation, Darden has not indicated the precise
manner in which he was prejudiced by the remark, claiming only that the jury may
have viewed him as a recent offender. See Harriston, 329 F.3d at 787 n.4; see also
United States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996) (noting that this
Court presumes that the jury follows the district court’s instructions). Because this
knowledge is not so prejudicial as to demand a retrial, we hold that the district
court did not abuse its discretion.
ACCA Enhancement
We review constitutional errors in sentencing de novo, but “will reverse the
district court only if any error was harmful.” United States v. Paz, 405 F.3d 946,
948 (11th Cir. 2005). In Almendarez-Torres v. United States, 523 U.S. 224, 228,
118 S.Ct. 1219, 1223, 140 L.Ed.2d 350 (1998), the Supreme Court held that “[a]n
indictment must set forth each element of the crime that it charges . . . [,b]ut it need
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not set forth factors relevant only to the sentencing of an offender found guilty of
the charged crime.”
In Booker, 543 U.S. at 232-35, 125 S.Ct. at 749-51, the Supreme Court
extended its holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004), and concluded that the mandatory nature of the Sentencing
Guidelines rendered them incompatible with the Sixth Amendment’s guarantee to
the right to a jury trial. The Supreme Court also explicitly reaffirmed its rule first
pronounced in Apprendi that “[a]ny 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 must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244, 125
S.Ct. at 756.
Prior to Booker, we held that Almendarez-Torres was good law. United
States v. Marseille, 377 F.3d 1249, 1257-58 & n.14 (11th Cir.), cert. denied, 543
U.S. 1013 (2004). After Booker, we held that the Supreme Court’s decision in
Almendarez-Torres “was left undisturbed by Apprendi, Blakely, and Booker,” and
that “a district court does not err by relying on prior convictions to enhance a
defendant’s sentence.” United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
2005). Again, after Booker, we continued to apply Almendarez-Torres in
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explaining that “the government need not allege in its indictment and need not
prove beyond a reasonable doubt that a defendant had prior convictions for a
district court to use those convictions for purposes of enhancing a sentence.”
United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.), cert. denied,
126 S.Ct. 457 (2005) (citing Almendarez-Torres, 523 U.S. 224, 118 S.Ct. 1219).
In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205(2005), the Supreme Court addressed Almendarez-Torres briefly. The Court
reaffirmed the “categorical” approach to establishing a predicate prior conviction
for purposes of the ACCA and held that when a prior state conviction resulted from
a guilty plea, federal sentencing courts may only consider the terms of the charging
document, the terms of a plea agreement, the transcript of a plea colloquy with the
judge during which the factual basis for the plea was confirmed by the defendant,
or some comparable judicial record of this information, but not other underlying
documents such as police reports. Shepard, 544 U.S. at __, 125 S.Ct. at 1263. In a
separate section of the opinion, a plurality of the Court explained that a dispute
over whether a burglary was a violent felony for purposes of the Act because it was
committed in a building or enclosed space could be “described as a fact about a
prior conviction.” Id. at __, 125 S.Ct. at 1262. Nevertheless, the plurality noted
that the determination was “too far removed from the conclusive significance of a
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prior judicial record, and too much like the findings subject to Jones [v. United
States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi, to
say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id.Darden does not argue in this case that the district court consulted any source that
was prohibited by Shepard.
After Shepard, this Court in Camacho-Ibarquen noted that Almendarez-
Torres must be followed because while Shepard “may arguably cast doubt on the
future prospects of Almendarez-Torres’s holding regarding prior convictions, the
Supreme Court has not explicitly overruled Almendarez-Torres.” Camacho-
Ibarquen, 410 F.3d at 1316 n.3. In a separate opinion, this Court noted that
Shepard does not alter the understanding that “because the prior-conviction
exception remains undisturbed after Booker, a district court does not err by relying
on prior convictions to enhance a defendant’s sentence.” United States v. Orduno-
Mireles, 405 F.3d 960, 962 & n.3 (11th Cir.), cert. denied, 126 S.Ct. 223 (2005);
see also United States v. Greer, 440 F.3d 1267,1273 (11 th Cir. 2006) (reaffirming
that “unless and until the Supreme Court specifically overrules Almendarez-Torres,
[this Court] will continue to follow it”).
Because Darden’s enhancement under U.S.S.G. § 4B1.4(b)(3)(B) for being
an armed career criminal involved a determination that he had prior qualifying
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convictions, the enhancement did not implicate the Apprendi/Blakely/Booker line
of cases because those cases clearly exempt prior convictions from the types of
facts that must be admitted by the defendant or proved to a jury beyond a
reasonable doubt in order to support a sentence enhancement. The Supreme
Court’s decisions in Apprendi, Blakely, Booker, and even Shepard, have not
overruled its holding in Almendarez-Torres that prior convictions may be
considered in enhancing sentences. Thus, after Booker, a judge still is able to
impose enhancements on the basis of a defendant’s prior conviction.
Sentencing Outside of the Guidelines Range
In United States v. Rucker, 171 F.3d 1359, 1360-61 (11th Cir. 1999), we
vacated a defendant’s sentence imposed after the district court found that his
criminal history category over-represented the seriousness of his prior drug
offenses and, as a result, departed three criminal history categories in calculating
the defendant’s sentence. In so doing, we emphasized that the district court “erred
by looking behind the face of the convictions for purposes of determining whether
a downward departure was warranted . . . .” Id. at 1363.
“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
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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.” Id. (quotation 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.” Shelton, 400 F.3d at 1330-31. Moreover, after Booker, in sentencing a
defendant, the district court must consider the factors provided at 18 U.S.C.
§ 3553(a) and the advisory Guideline range. See United States v. Scott, 426 F.3d
1324, 1329 (11th Cir. 2005).
Because Darden objected below to the district court’s mandatory application
of the Guidelines, we review his claim of Booker error de novo, but reverse only
for harmful error. See Paz, 405 F.3d at 948. We apply separate harmless error
standards to Booker constitutional errors and to Booker statutory errors. United
States v. Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005). “[C]onstitutional
errors are harmless where the government can show, beyond a reasonable doubt,
that the error did not contribute to the defendant’s ultimate sentence.” Id. at 1291(citation omitted). In contrast, Booker statutory errors are subject to the less
demanding non-constitutional error test. Id. at 1292. A “non-constitutional error is
harmless if, viewing the proceedings in their entirety, a court determines that the
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error did not affect the sentence, or had but very slight effect.” Id. (quotation and
alterations omitted). “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.” Id. (quotation and alterations omitted). The government has the
burden of proof under both standards. See id. at 1291-92.
In this case, the district court judge, who sentenced Darden months after the
Supreme Court issued its decision in Booker, stated that she wanted to sentence
him below the Guideline range, but that, in order to follow our decision in Rucker,
she had to work within the Guideline range. Therefore, the district court sentenced
Darden “under a mandatory Guidelines scheme,” and, in so doing, committed
statutory Booker error. See Shelton, 400 F.3d at 1330-31. Because the
government concedes that the district court erred in finding that Rucker barred the
court from sentencing Darden outside of the Guideline range, which the court
desired to do, the government has not demonstrated that the error in this case was
harmless. Accordingly, we vacate Darden’s sentence and remand his case to the
district court for resentencing. In so doing, we note that Darden raised no claim
about the calculation of his Guideline range, and thus that calculation should
control on remand. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.
2005) (stating that after Booker, district courts must consult the Guidelines and
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“[t]his consultation requirement, at a minimum, obliges the district court to
calculate correctly the sentencing range prescribed by the Guidelines”). Thus, on
remand, the district court is required to sentence Darden under an advisory
Guidelines system, considering the Guideline range of 235-293 months’
imprisonment and the factors provided at 18 U.S.C. § 3553(a). See Booker, 543
U.S. at 245-46.
Conclusion
Based on a review of the record on appeal, we vacate Darden’s sentence and
remand his case to the district court for resentencing, considering the applicable
Guideline range and the factors provided at 18 U.S.C. § 3553(a). We affirm the
remaining issues on appeal.
VACATED AND REMANDED IN PART; AFFIRMED IN PART. 1
1
Darden’s request for oral argument is denied.
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