United States v. McKenzie , 164 F. App'x 319 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4391
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDRICK ABRAHAM MCKENZIE, a/k/a Camron
Darnell Lewis, a/k/a Jamaican Vince, a/k/a
Vince,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-556)
Submitted: November 30, 2005 Decided: January 10, 2006
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
John Terrence Mobley, Columbia, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Alfred W.
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Fredrick Abraham McKenzie pled guilty to possession of
five kilograms or more of cocaine with intent to distribute, 21
U.S.C. § 846 (2000), and was sentenced to a term of 264 months
imprisonment. McKenzie appeals his sentence, asserting that the
district court clearly erred in calculating his guideline range and
that his sentence under the remedial scheme set out in United
States v. Booker, 125 S. Ct. 738 (2005), was imposed in violation
of the Ex Post Facto Clause and the Confrontation Clause. For the
reasons explained below, we affirm in part, vacate in part, and
remand for resentencing.
The factual basis for McKenzie’s guilty plea established
that he had supplied over twenty kilograms of cocaine to at least
five cooperating defendants in Horry County, South Carolina,
between 2001 and his arrest in May 2004. The presentence report
summarized the information they provided about his cocaine sales to
crack cocaine dealers and his use of a firearm. McKenzie also
cooked a quarter kilogram (250 grams) of cocaine into crack on one
occasion and Milton Gause, one of the cooperating defendants,
bought 2.5 ounces (70.88 grams) of crack from McKenzie ten to
fifteen times (ten times = 708.75 grams). McKenzie admitted
cooking cocaine into crack on several occasions for Gause.
At the sentencing hearing in March 2005, the district
court overruled McKenzie’s objection to the use of the guidelines
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as unconstitutional; calculated a base offense level of 38 under
U.S. Sentencing Guidelines Manual § 2D1.1(c)(1) (2003) (1.5 kgs of
crack or more) on the ground that it was reasonably foreseeable
that his customers would convert the cocaine they bought from him
to crack; approved a two-level weapon enhancement, USSG
§ 2D1.1(b)(1), a two-level aggravated role adjustment under USSG
§ 3B1.1(c); a three-level adjustment for acceptance of
responsibility, USSG § 3E1.1; and determined that McKenzie was not
eligible for a reduction under the safety valve provision in
§ 2D1.1(b)(6). The resulting advisory guideline range was 262-327
months. The court imposed a sentence of 264 months.
On appeal, McKenzie first argues that the district court
clearly erred in using crack to calculate his base offense level.
United States v. Lamarr, 75 F.3d 964, 972 (4th Cir. 1996) (standard
of review). A defendant involved in a joint criminal undertaking
may be held responsible for relevant conduct that includes all
reasonably foreseeable conduct of his co-conspirators that is in
furtherance of the conspiracy. USSG § 1B1.3(a)(1)(B). When there
is no drug seizure or the drug seized does not reflect the scale of
the offense, the sentencing court should approximate the amount of
the drugs for which the defendant is responsible. USSG § 2D1.1,
comment. (n.12).
McKenzie argues that his customers’ conversion of the
cocaine he sold them to crack was not reasonably foreseeable to
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him. However, McKenzie did not challenge the statement in the
presentence report that his customers were crack dealers, and
because he lived in the community for a while, the district court
could infer that he was aware that his customers were selling
crack. Moreover, undisputed information in the presentence report
established that McKenzie had personal involvement with almost a
kilogram of crack. We therefore conclude that the district court
did not clearly err in (1) finding that it was reasonably
foreseeable to McKenzie that his co-conspirators would convert the
cocaine he sold them to crack and (2) holding him responsible for
at least 1.5 kilograms of crack.
McKenzie is on more solid ground in his challenge to the
district court’s determination that he was a leader, organizer,
manager or supervisor in the offense. This issue is also reviewed
for clear error. United States v. Sayles, 296 F.3d 219, 224 (4th
Cir. 2002). McKenzie asserts that the two-level role adjustment
was unsupported because there was no evidence in the record that he
did any more than sell cocaine. We agree. McKenzie correctly
argues that his case is similar to Sayles, 296 F.3d at 224-27(refusing to uphold two-level role adjustment where defendants
bought and sold large amounts of cocaine but the government did not
present evidence of any factors listed in Application Note 4 to
USSG § 3B1.1 that indicate an aggravated role).
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For the adjustment to be given because a defendant was a
leader, the defendant must have controlled others. United
States v. Carter, 300 F.3d 415, 426 (4th Cir. 2002) (defendants
were principal suppliers of crack to street dealers and two
witnesses testified that more than ten people worked for them). A
defendant is an organizer if he coordinates others to promote the
criminal activity. United States v. Picanso, 333 F.3d 21, 23-24
(1st Cir. 2003) (wholesale drug dealer was primary drug supplier
and boasted that he could shut down co-defendant’s distribution if
he chose). A defendant who is deemed a manager or supervisor must
have directed the activities of others. United States v. Turner,
319 F.3d 716, 725 (5th Cir. 2003) (defendant directed another who
sent and received packages and stored marijuana for him). In
McKenzie’s case, the only evidence offered in support of the role
adjustment was his sale of large quantities of cocaine and the
government acknowledged at sentencing that McKenzie was only one of
a number of suppliers to the local dealers. Although the
government asserted and the district court found that McKenzie
recruited others, no specific information supported the finding.
On the record before us, we conclude that the district
court clearly erred in giving McKenzie a role adjustment. 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.
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Under United States v. Hughes, 401 F.3d 540 (4th Cir. 2005), the
district court should first determine the appropriate sentencing
range under the guidelines, making all factual findings appropriate
for that determination. 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), before
imposing a sentence that is “within the statutorily prescribed
range and . . . reasonable.” Id. In sentencing McKenzie, the
district court did not consider “the appropriate guideline range.”
McKenzie next contends that his sentence was imposed in
violation of the Ex Post Facto Clause because, by making the
guidelines advisory, Booker effectively raised the statutory
maximum sentence from the top of the applicable guideline range (as
Booker held it was previously), to the maximum penalty allowed
under the statute. We find this claim to be without merit. See
United States v. Jamison, 416 F.3d 538 (7th Cir. 2005); United
States v. Lata, 415 F.3d 107 (1st Cir. 2005); United States v.
Scroggins, 411 F.3d 572 (5th Cir. 2005); United States v. Duncan,
400 F.3d 1297, 1306-08 (11th Cir.), cert. denied, 126 S. Ct. 432(2005).
Finally, citing Crawford v. Washington, 541 U.S. 36(2004), which held that the Confrontation Clause prohibits
admission of testimonial statements that are not subject to cross-
examination, McKenzie contends that the Confrontation Clause should
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apply to the district court’s consideration of information in the
presentence report that increased his guideline sentence. We find
no merit in his position. See United States v. Chau, 426 F.3d
1318, 1323 (11th Cir. 2005); United States v. Roche, 415 F.3d 614,
618 (7th Cir.), cert. denied, ___ U.S. ___, 2005 WL 3027861 (U.S.
Nov. 14, 2005) (No. 05-7031); United States v. Luciano, 414 F.3d
174, 179 (1st Cir. 2005); United States v. Martinez, 413 F.3d 239,
243-44 (2d Cir. 2005).
For the reasons discussed, we vacate the sentence and
remand the case for resentencing without the aggravated role
adjustment. We affirm the sentence in all other respects. 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 IN PART, AND REMANDED
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