United States v. Brandon , 214 F. App'x 315 ( 2007 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4831
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SANDAKO MESHAWN BRANDON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-02-193)
Submitted: September 20, 2006 Decided: January 23, 2007
Before WILKINSON, LUTTIG,1 and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, HOLTON, TISDALE & CLIFTON, P.A.,
Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, L. Patrick Auld,
Assistant United States Attorneys, Greensboro, North Carolina, for
Appellee.
1
Judge Luttig was a member of the original panel but did not
participate in this decision on rehearing. This opinion is filed
by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Sandako Meshawn Brandon appeals his 360-month sentence
imposed following remand from this court2 for one count of
conspiracy to distribute cocaine base, in violation of 21 U.S.C.
§ 846, and one count of distributing cocaine base, in violation of
21 U.S.C. § 841(a). On this second appeal, we affirmed his
sentence, having previously affirmed his conviction. Brandon now
petitions for rehearing. Because we cannot be certain of the
district court’s sentencing explanations following our earlier
remand, we think the most prudent course is simply to grant the
petition and have the district court clarify its intentions on
resentencing.
Brandon first contends that the district court’s finding
that he qualified as a career offender was impermissibly based upon
facts not alleged in the indictment or admitted to, in violation of
his Sixth Amendment rights. Because Brandon preserved this issue
by objecting under Blakely v. Washington, 542 U.S. 296 (2004), to
being sentenced as a career offender, we review for harmless error.
See United States v. Rodriguez, 433 F.3d 411, 415 (4th Cir. 2006).
In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court held that the mandatory manner in which the federal
sentencing guidelines required courts to impose sentencing
enhancements based on facts found by the court by a preponderance
2
See United States v. Brandon, 363 F.3d 341 (4th Cir. 2004).
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of the evidence violated the Sixth Amendment. The Court remedied
the constitutional violation by severing two statutory provisions,
18 U.S.C.A. § 3553(b)(1) (requiring sentencing courts to impose a
sentence within the applicable guideline range), and 18 U.S.C.A.
§ 3742(e) (setting forth appellate standards of review for
guideline issues), thereby making the guidelines advisory.
The Supreme Court nevertheless reaffirmed its prior
holding 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. This
court has held that the application of the career offender
enhancement falls within the exception for prior convictions where
the facts are undisputed, making it unnecessary for the district
court to engage in further fact-finding about a prior conviction.
See United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);
see also Shepard v. United States, 544 U.S. 13, 16 (2005) (holding
that a court’s inquiry as to disputed facts in connection with a
prior conviction is limited to the terms of the charging document,
a plea agreement, a transcript of the plea colloquy, or a
comparable judicial record). Accordingly, Brandon’s claim must
fail.
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Moreover, we reject Brandon’s contention that under
Booker, the district court violated his Sixth Amendment rights by
making impermissible factual findings in determining his criminal
history category. In Shepard, the Supreme Court recognized that
the prior conviction exception survived Booker, but held the Sixth
Amendment protections apply to “a disputed fact . . . about a prior
conviction.” Shepard, 544 U.S. at 25. Instead of challenging the
accuracy or the “fact” of his prior convictions, Brandon asserts
that the increase required more than just judicial notice of the
“fact” of the prior convictions because the district court had to
consider the type of conviction and whether it qualified as a
violent felony, the length and type of sentence imposed, and
recency of the prior convictions in relation to the instant
offense. We conclude, however, that the district court was
required only to take judicial notice that Brandon had been
convicted and when the conviction occurred, both facts that are a
matter of public record and require no interpretation.
Accordingly, we conclude that the district court’s recognition of
the existence of Brandon’s prior convictions and assessment of the
timing of those convictions was not in violation of his Sixth
Amendment rights.
Brandon’s Blakely objection, however, also preserves a
claim that the district court committed statutory error by treating
the Sentencing Guidelines as mandatory. See Rodriguez, 433 F.3d at
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414. Because the statutory error was preserved below, we review
for harmless error. Under harmless error review, the burden is on
the government to prove that the district court would not have
imposed a lesser sentence if it had known that the Guidelines were
not mandatory. See id. at 415-16. We conclude that the government
has not satisfied that burden.
When sentencing Brandon, the district court announced an
alternate sentence of 262 months. The government contends that this
alternate sentence does not reflect the sentence that the court
would have given under an advisory sentencing scheme because the
district court stated that the alternate sentence was based on an
assumption that the career offender guidelines would not apply
after Blakely. The district court, however, also referred to our
then-recent opinion in United States v. Hammoud, 381 F.3d 316 (4th
Cir. 2004) (en banc),3 which required district courts to announce
an alternate sentence pursuant to 18 U.S.C.A. § 3553(a) “treating
the guidelines as advisory only.” Id. at 353. This reference to
Hammoud, when considered with the court’s statement that the
alternate sentence resulted from the removal of the career offender
provisions from the sentencing calculation, leaves us uncertain as
to the true nature of the alternate sentence announced by the
court. And contrary to the government’s suggestion, we do not
3
After deciding Booker, the Supreme Court vacated and remanded
Hammoud. See Hammoud v. United States, 543 U.S. 1097 (2005).
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believe that the uncertainty can be resolved by referring to the
district court’s explanation in a later, unrelated case, of the
court’s general practices with regard to alternate sentences.
Because the government has not proved that the district court would
not have imposed a lesser sentence under an advisory guidelines
scheme, we conclude that Brandon is entitled to resentencing.
Accordingly, we vacate Brandon’s sentence and remand for
resentencing. 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.
VACATED AND REMANDED
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