United States v. Debreus ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4517
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCILLON DEBREUS, a/k/a Francis,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-474)
Submitted: July 6, 2005 Decided: August 3, 2005
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
John W. Locklair, III, JOYE & LOCKLAIR, P.A., Murrells Inlet, South
Carolina, for Appellant. Alfred W. Bethea, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
Francillon Debreus appeals his conviction and sentence for
one count of conspiracy to possess with intent to distribute 50
grams of crack cocaine and 5 kilograms of cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(A), 846 (2000). Debreus’ attorney filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that, in his opinion, there are no meritorious issues for appeal.
Counsel does assert however, that Debreus’ sentence is improper in
light of Blakely v. Washington, 124 S. Ct. 2531 (2005), and Apprendi
v. New Jersey, 530 U.S. 466 (2000). Debreus filed a pro se
supplemental brief raising several challenges to the sufficiency of
the evidence, the selection of the jury and the enhancements under
the sentencing guidelines. While we affirm the conviction, we
vacate the sentence and remand for resentencing.
Debreus was involved in a significant drug conspiracy
distributing crack cocaine and cocaine in South Carolina. At trial,
many of Debreus’ co-defendants testified against him. The evidence
was overwhelming that Debreus was a significant operative in the
conspiracy that spanned several years. Accordingly, we find the
evidence was sufficient to support the conviction. Glasser v.
United States, 315 U.S. 60, 80 (1942) (stating standard).
Debreus’ challenge to the jury venire must fail. There
is no evidence he challenged the selection of the jury venire at
trial. Accordingly, review is waived. See 28 U.S.C. § 1867 (2000);
- 2 -
United States v. Webster, 639 F.2d 174, 180 (4th Cir. 1981).
Moreover, our review of the record shows no support for such a
claim.
The jury found beyond a reasonable doubt Debreus was
responsible for 50 grams or more of crack cocaine and 5 kilograms
of cocaine. Combining these drug amounts would have resulted in a
base offense level of 32, with a corresponding guideline range of
151 to 188 months’ imprisonment for Debreus’ criminal history
category. At sentencing, however, the district court found Debreus
was responsible for 77.19 kilograms of crack cocaine, possession of
a firearm, a leadership or managerial role in the conspiracy and
obstruction of justice. As a result, Debreus’ offense level was
adjusted upward to 44. The result was a guideline sentence of life
imprisonment. None of the sentencing enhancements were found by the
jury beyond a reasonable doubt or admitted by Debreus. Debreus’
sentence was imposed prior to the decisions in United States v.
Booker, 125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct.
2531 (2004), and he did not raise objections to his sentence based
on the mandatory nature of the Sentencing Guidelines or the district
court’s application of sentencing enhancements based on facts not
admitted by Debreus or found by a jury beyond a reasonable doubt.
Therefore, we review his sentence for plain error. See United
States v. Hughes, 401 F.3d 540, 546-60 (4th Cir. 2005). His life
sentence thus meets the standard for plain error that must be
- 3 -
recognized under the reasoning set forth in Hughes.1 Accordingly,
we will vacate Debreus’ sentence and remand for resentencing in
light of Booker.2
Accordingly, we affirm the conviction and vacate and
remand his sentence for resentencing consistent with Booker and
Hughes.3 We deny Debreus’ motion to relieve counsel and to appoint
new counsel. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
1
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Debreus’ sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of appeal”).
2
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult [the]
Guidelines and take them into account when sentencing.” 125 S. Ct.
at 767. On remand, the district court should first determine the
appropriate sentencing range under the Guidelines, making all
factual findings appropriate for that determination. See Hughes, 401
F.3d at 546. The court should consider this sentencing range along
with the other factors described in 18 U.S.C. § 3553(a) (2000), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons for the
departure as required by 18 U.S.C. § 3553(c)(2) (2000). Id. The
sentence must be “within the statutorily prescribed range and . .
. reasonable.” Id. at 546-47.
3
Given that we are vacating the sentence and remanding for
resentencing, we will not review at this juncture Debreus’ challenge
to the sentencing enhancements. If there is an appeal after
resentencing, it may be appropriate to review the enhancements at
that point in the process.
- 4 -