United States v. Jean , 234 F. App'x 66 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAILE JEAN, a/k/a Shorty Black, a/k/a Desire
Jean Sallier, a/k/a Blackie, a/k/a Jean Saile,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:01-cr-01117-SB-1)
Submitted: July 13, 2007 Decided: July 26, 2007
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter D. DeLuca, Jr., DELUCA AND MAUCHER, L.L.P., Goose Creek,
South Carolina, for Appellant. Robert Hayden Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Saile Jean appeals his sentence following remand of 360
months of imprisonment and five years of supervised release for
conspiracy to possess with intent to distribute in excess of five
kilograms of cocaine and fifty grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (2000) and 21 U.S.C.
§ 846 (2000); possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)
and 18 U.S.C. § 2 (2000); and making false statements to a federal
agent, in violation of 18 U.S.C. § 1001(a)(2) (2000).1 Counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), asserting that there are no meritorious issues for appeal,
but questioning whether the district court erred in adopting the
facts set forth in the presentence investigation report (“PSR”) and
in sentencing Jean based on facts not found by the jury beyond a
reasonable doubt.2 Jean has filed a supplemental pro se brief
essentially raising the same claim and specifically challenging the
district court’s determination of the amount of drugs attributable
to him and the three-level enhancement of his sentence under U.S.
Sentencing Guidelines Manual (“USSG”) § 3B1.1(b) (2002), for his
1
We previously affirmed Jean’s conviction, but vacated his
sentence and remanded for resentencing in accordance with United
States v. Booker, 543 U.S. 220 (2005).
2
The district court originally sentenced Jean under the
then-mandatory federal sentencing guidelines to the same sentence
later imposed on remand.
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role in the offense as a supervisor or manager based on judicially
determined facts found by a preponderance of the evidence and not
found by the jury, claiming that these findings violate his
constitutional rights.3 We affirm.
Contrary to Jean’s assertion regarding the district
court’s determination of the amount of drugs attributable to him
and its enhancement of his sentence, Booker did “not in the end
move any decision from judge to jury, or change the burden of
persuasion.” United States v. Morris, 429 F.3d 65, 72 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006). In sentencing
defendants after Booker, district courts continue to make findings
necessary for enhancement, applying a preponderance of the evidence
standard, while taking into account that the resulting Guidelines
range is advisory only. Id. The sentencing court is authorized to
make factual findings in order to determine appropriately the
defendant’s advisory range under the guidelines. See United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).
The issue of whether the district court correctly
calculated the quantity of drugs attributable to Jean for
sentencing purposes is easily disposed of pursuant to the standard
principles of derivative liability. A conspirator may be held
accountable for all quantities of drugs attributable to the
3
Jean failed to object below to the facts contained in the
PSR, thus rendering this court’s review of his sentence for plain
error. United States v. Olano, 507 U.S. 725 (1993).
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conspiracy so long as it was reasonably foreseeable that the drugs
were possessed within the scope of the conspiratorial agreement.
See United States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993).
The PSR recommended a drug quantity of 3.746 kilograms of cocaine
base (“crack”) and 53.493 kilograms of cocaine attributable to
Jean, far in excess of the 1.5 kilograms of cocaine base required
for a base offense level of thirty-eight under USSG § 2D1.1(c)(1).
The PSR specified a quantity of 1984.5 grams of crack based on
evidence from Jaimie Green, one of the members of the drug
conspiracy that included Jean, and this amount alone is sufficient
to support a base offense level of thirty-eight. Specifically, the
PSR reflects that Green reported to Task Force Agents that he
witnessed Lewis Chisolm obtain five or six ounces of crack from
Jean on six or seven occasions (at least 850.5 grams), that he
personally obtained ten ounces of crack from Jean directly (283.5
grams), and that he had observed Jean in possession of thirty or
more ounces of crack at one time (850.5 grams).4 The trial
evidence of the necessary drug quantity sufficient to support a
base offense level of thirty-eight came from a myriad of witnesses,
was overwhelming, essentially uncontroverted, exceeded even the
estimates used in the PSR to determine Jean’s base level, and put
Jean far in excess of the 1.5 kilograms of cocaine base necessary
4
At trial, Green actually testified to amounts of crack
attributable to Jean that exceeded even these amounts.
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to trigger the application of a base offense level of thirty-eight.
Thus, we find no basis to conclude that the district court plainly
erred in sentencing Jean on a base offense level of thirty-eight,
as reflected in the PSR.
With regard to Jean’s challenge to the three-level
enhancement recommended by the PSR and adopted by the district
court for a leadership role in a conspiracy pursuant to USSG
§ 3B1.1(b), Jean has not offered any evidence to the contrary or
specifically explained why the PSR was inaccurate or unreliable.
His mere challenge, particularly on appeal for the first time, is,
without more, insufficient to put the PSR’s findings into dispute.
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990); cf.
Gilliam, 987 F.2d at 1013 (“[T]he Government carries its burden if
a defendant fails to properly object to a recommended finding in a
presentence report that the court determines to be reliable.”).
Because Jean failed to make the required affirmative showing that
the PSR was inaccurate or unreliable, the district court was “free
to adopt the findings of the [PSR] without more specific inquiry or
explanation.” Terry, 916 F.2d at 162 (internal quotation marks
omitted). We affirm the imposition of a three-level leadership
role enhancement to Jean’s offense level.
After Booker, courts must calculate the appropriate
guideline range, making any appropriate factual findings. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The court
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then should consider the resulting advisory guideline range in
conjunction with the factors under 18 U.S.C.A. § 3553(a) (West 2000
& Supp. 2006), and determine an appropriate sentence that is
“sufficient but not greater than necessary,” to achieve the goals
of § 3553(a). Davenport, 445 F.3d at 370. We will affirm a
post-Booker sentence if it “is within the statutorily prescribed
range and reasonable.” United States v. Moreland, 437 F.3d 424,
433 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). We have
repeatedly held that “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006); see also United
States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert.
denied, ---- S. Ct. ----, 75 U.S.L.W. 3707 (U.S. June 29, 2007)
(No. 06-5439); United States v. Green, 436 F.3d 449, 457 (4th
Cir.), cert. denied, 126 S. Ct. 2309 (2006). Neither Jean nor the
record suggest any information so compelling as to rebut the
presumption that his sentence within a properly calculated
guideline is reasonable. We find no error in the calculation of
the advisory guideline range,5 and Jean failed to provide evidence
5
At resentencing, the district court specifically referred to
Booker, to the advisory nature of the guidelines, and to the
§ 3553(a) factors, stating that it specifically considered those
factors. It adopted the findings in the presentence report, and in
addition to the § 3553(a) factors, the court considered the
guidelines range and other relevant guideline factors. The court
was familiar with Jean’s history and background, having presided
over his trial. Also, the court had sentenced Jean originally and
was familiar with the details of his case from the initial
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to overcome the presumption of reasonableness we accord such a
sentence. The district court appropriately treated the guidelines
as advisory, and properly sentenced Jean within that range.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Jean’s sentence. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client.
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
sentencing hearing. Jean’s presentence report outlined his offense
conduct and his criminal history. Finally, both Jean and his
attorney took the opportunity to argue about the length of his
sentence and application of the § 3553(a) factors during
resentencing prior to the district court’s imposition of sentence.
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