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United States v. Jonathan Aaron Tompkins ( 2005 )


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  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    SEPTEMBER 13, 2005
    No. 04-16436                   THOMAS K. KAHN
    Non-Argument Calendar                  CLERK
    ________________________
    D. C. Docket No. 04-00069-CR-3-LAC
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JONATHAN AARON TOMPKINS,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (September 13, 2005)
    Before BIRCH, CARNES and MARCUS, Circuit Judges.
    PER CURIAM:
    Jonathan Aaron Tompkins appeals his 103-month sentence pursuant to a
    guilty plea for possession of firearm by a convicted felon, in violation of 18 U.S.C.
    § 922(g)(1). He concedes that, in his plea agreement, he waived his Sixth
    Amendment right to have a jury find sentencing facts beyond a reasonable doubt.
    He argues, however, that the district court plainly erred by applying the United
    States Sentencing Guidelines as mandatory, in light of Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S. Ct. 2531
    (2004), and United States v. Booker, 543 U.S. ___, 
    125 S. Ct. 738
    (2005), and asserts that the district court’s express limitation of its
    sentencing decision to factors within the guidelines was held unconstitutional in
    Booker. He further asserts that, although the district court commented that the
    sentence satisfied the 18 U.S.C. § 3553(a) purposes of punishment and deterrence,
    it did not indicate whether the sentence was designed to satisfy other § 3553(a)
    interests, such as rehabilitation, educational training, or medical care. He also
    contends that the district court violated his Sixth Amendment rights by relying on
    his prior convictions to enhance his convictions, asserting that Almendarez-Torres
    v. United States, 
    523 U.S. 224
    , 
    118 S. Ct. 1219
    (1998) 1 is no longer good law in
    light of Shepard v. United States, 544 U.S. ___, 
    125 S. Ct. 1254
    (2005).
    In his plea agreement, Tompkins waived his Booker Sixth Amendment right
    to have a jury find the sentencing facts beyond a reasonable doubt. R1-29 at 5.
    1
    In Almendarez-Torres, the Supreme Court held that the government was not required to
    allege in an indictment or prove beyond a reasonable doubt a defendant’s prior convictions for a
    district court to use those convictions for the purpose of sentence enhancement. 
    Almendarez-Torres, 523 U.S. at 241
    , 243-44, 
    247-48, 118 S. Ct. at 1229
    , 1230-31, 1232-33.
    2
    He concedes plain error review as to the Booker statutory issue regarding the
    district court’s application of the guidelines as mandatory. To prevail under a
    plain error standard, an appellant must show that there is: (1) an error; (2) that the
    error is plain; and (3) that the plain error affected substantial rights. United States
    v. Shelton, 
    400 F.3d 1325
    , 1328-29 (11th Cir. 2005). Once the appellant proves
    these three elements, we may notice the error only if it “seriously affects the
    fairness, integrity, or public reputation of judicial proceedings.” 
    Id. at 1329
    (internal citation omitted).
    Based on the Supreme Court’s holdings in Booker, there can be two
    Booker errors: (1) a Sixth Amendment, constitutional, error in the imposition of a
    sentencing enhancement based on judicial findings that go beyond the facts
    admitted by the defendant or found by the jury, and (2) a statutory error in the
    imposition of a sentence under a mandatory guidelines system. 
    Id., 400 F.3d
    at
    1330-31. Even in the absence of a Booker constitutional error, a district court errs
    by imposing a sentence under a mandatory Guidelines scheme. See 
    id. A plain
    error may be established under the first two prongs of the plain error
    test when a statutory error exists; that is, the defendant is sentenced under
    mandatory rather than advisory guidelines. 
    Id. The defendant's
    burden with
    respect to the third prong, however, “is to show that the error actually did make a
    3
    difference.” United States v. Rodriguez, 
    398 F.3d 1291
    , 1300 (11th Cir.), cert.
    denied,   U.S.    , 
    125 S. Ct. 2935
    (2005). “[I]n applying the third prong, we ask
    whether there is a reasonable probability of a different result if the guidelines had
    been applied in an advisory instead of binding fashion by the sentencing judge in
    this case.” 
    Id. at 1301.
    Reasonable probability of a different result means a
    probability “sufficient to undermine confidence in the outcome.” 
    Id. at 1299
    (citation and punctuation omitted). Under the fourth prong, we consider the plain
    error’s affect on the judicial proceedings and look for such factors as the district
    judge’s express desire to impose a sentence different than that imposed. 
    Shelton, 400 F.3d at 1333-34
    . We have consistently held that a sentence even at the low
    end of the guideline range, standing alone, is insufficient to carry a defendant’s
    burden demonstrating a reasonable probability of a lesser sentence under advisory
    guidelines. See United States v. Fields, 
    408 F.3d 1356
    , 1361 (11th Cir. 2005)
    (holding that the fact that the defendant was sentenced at the bottom of the
    mandatory guideline range, without more, is insufficient to satisfy the third prong’s
    requirement that the defendant show a reasonable probability of a lesser sentence
    under an advisory guideline system; accord United States v. Cartwright, 
    413 F.3d 1295
    , 1301 (11th Cir. 2005)).
    Even with the government’s concession that district court committed
    4
    Booker error that was plain by applying the sentencing guidelines as binding,
    Tompkins fails to set forth any evidence to show that there is a reasonable
    probability of a different result if the guidelines had been applied in an advisory
    instead of binding fashion by the sentencing judge. See 
    Shelton, 400 F.3d at 1330
    -
    31. The district court sentenced Tompkins to a term of imprisonment for 103
    months, which is within the middle of the guideline range. The district judge
    explained: “This is at the midpoint of the guideline range, the Court not finding
    any aggravating or mitigating circumstances not already accounted for by the
    guidelines. I do find this meets the goals of punishment and hopefully will act as a
    deterrent to anyone else who might consider similar criminal activity.” R4 at 10.
    The district court said nothing else, leaving no indication or expression of
    “reasonable probability” that it would have sentenced Tompkins to a lesser
    sentence had the guidelines been merely advisory.
    Tompkins also cites no authority requiring the district court’s express
    statement that it considered each penal purpose listed in § 3553(a), as opposed to
    simply stating that the sentence meets “the goals of punishment and hopefully will
    act as a deterrent.” 
    Id. at 10-11;
    see, e.g., United States v. Robles, 
    408 F.3d 1324
    ,
    1328 (11th Cir. 2005) (per curiam) (stating that even post-Booker, “we would not
    expect the district court in every case to conduct an accounting of every § 3553(a)
    5
    factor . . . and expound upon how each factor played a role in its sentencing
    decision”). There was no reversible, statutory Booker error in sentencing
    Tompkins under a mandatory guideline scheme because he failed to show that the
    plain error affected his substantial rights. See 
    Fields, 408 F.3d at 1361
    .
    Although Tompkins also argues that the use of prior convictions to enhance
    the sentence is unconstitutional and that Almendarez-Torres is no longer good law
    in light Shepard, his plea agreement waiver also covers this issue. Further, we
    have consistently held that held that Almendarez-Torres remains good law until it
    is overruled by the Supreme Court. See United States v. Camacho-Ibarquen, 
    410 F.3d 1307
    , 1316 n.3 (11th Cir. 2005) (per curiam) (“Although recent decisions,
    including 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.”).
    For the reasons stated above, Tompkins’s sentence is
    AFFIRMED.
    6
    

Document Info

Docket Number: 04-16436; D.C. Docket 04-00069-CR-3-LAC

Judges: Birch, Carnes, Marcus, Per Curiam

Filed Date: 9/13/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024