United States v. Harris , 160 F. App'x 312 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4292
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TENNYSON HARRIS, a/k/a Mark T, a/k/a Teddy,
Defendant - Appellant.
On Remand from the United States Supreme Court.
(S. Ct. No. 04-7536)
Submitted: October 14, 2005 Decided: December 29, 2005
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Timothy S. Mitchell, LAW OFFICE OF TIMOTHY S. MITCHELL, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Mythili Raman, Steven M. Dunne, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before us on remand from the United States
Supreme Court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). In our prior opinion, we
affirmed Harris’s conviction and 360-month sentence imposed after
a jury convicted him of conspiracy to distribute and possess with
intent to distribute 1000 kilograms or more of marijuana, in
violation of 21 U.S.C. § 846 (2000). United States v. Harris, No.
03-4292, 2004 WL 1895199 (4th Cir. Aug. 25, 2004) (unpublished),
vacated, 125 S. Ct. 1087 (2005). After reviewing Harris’s appeal
in light of Booker, we affirm his conviction for the reasons stated
in our prior opinion, vacate his sentence, and remand for
resentencing.
Harris asserts that his Sixth Amendment rights were
violated because the district court enhanced his offense level
based upon facts not alleged in the indictment or found by the
jury. He argues that this error should be reviewed under a
harmless error standard because he objected to the enhancements at
sentencing and cited Apprendi v. New Jersey, 530 U.S. 466 (2000),
in his objections. Harris also asserts that he is entitled to be
resentenced even if his sentence is reviewed under a plain error
standard. The Government responds that because Harris did not
assert a Sixth Amendment objection to the enhancements, but rather
argued the sufficiency of the evidence supporting those
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enhancements, this court should review his sentence under a plain
error standard. The Government also concedes that Harris is
entitled to be resentenced pursuant to this court’s decision in
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Our
review of Harris’s written objections to the presentence report
and the sentencing transcript support the Government’s assertion
that plain error review is appropriate, as Harris did not assert
objections based upon the Sixth Amendment, but argued that the
facts supporting the drug quantity and enhancements to his offense
level had not been sufficiently established at trial.
Harris argues that the drug quantity attributed to him
for sentencing should have been limited to the 1000 kilograms or
more of marijuana charged in the indictment and found by the jury,
which would result in a base offense level of 32,1 and that the
other enhancements should not be applied because they were not
found by the jury or admitted by him. To demonstrate plain error,
Harris must establish that error occurred, that it was plain, and
that it affected his substantial rights. Id. at 547-48. If a
defendant satisfies these requirements, the court’s “discretion is
appropriately exercised only when failure to do so would result in
a miscarriage of justice, such as when the defendant is actually
innocent or the error seriously affects the fairness, integrity or
1
See U.S. Sentencing Guidelines Manual (USSG) § 2D1.1(c)(4)
(2001).
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public reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted).
In Booker, 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 of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750 (Stevens, J., opinion of the Court). The
Court remedied the constitutional violation by severing two
statutory provisions and thereby making the guidelines advisory.
Id. at 756-67 (Breyer, J., opinion of the Court). After Booker,
courts must calculate the appropriate guideline range, consider the
range in conjunction with other relevant factors under the
guidelines and 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and
impose a sentence. If a district court imposes a sentence outside
the guideline range, the court must state its reasons for doing so
as required by 18 U.S.C.A. § 3553(c)(2) (West 2000 & Supp. 2005).
Hughes, 401 F.3d at 546. The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Id. at 547.
Here, the district court sentenced Harris under the
mandatory federal sentencing guidelines and established a base
offense level of thirty-four by determining that Harris was
responsible for more than 3000 kilograms but less than 10,000
kilograms of marijuana. The court also enhanced Harris’s base
offense level by two levels for possession of a dangerous weapon,
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and by four levels for a leadership role, yielding a total offense
level of forty. The resulting guideline range for a criminal
history category of IV was 360 months to life imprisonment. The
district court sentenced Harris to 360 months of imprisonment--the
bottom of the guideline range.
Using only the amount of drugs found by the jury (more
than 1000 kilograms of marijuana) and without the enhancements for
possession of a weapon and leadership role, Harris’s offense level
would have been thirty-two. See USSG § 2D1.1(c)(4). With a
criminal history category of IV, Harris’s guideline range would
have been 168 to 210 months of imprisonment. USSG Ch. 5, Pt. A
(Sentencing Table). Because the Government filed a notice of prior
felony drug conviction pursuant to 21 U.S.C. § 851 (2000), however,
Harris was subject to a mandatory minimum of twenty years of
imprisonment, so the guideline range becomes 240 months. USSG
§ 5G1.1(b). The 360-month sentence Harris received is longer than
the maximum of 240 months the district court could have imposed
based solely on the facts found by the jury. See Hughes, 401 F.3d
at 548. We conclude that the district court’s plain error in
sentencing Harris based upon facts found by the court and not the
jury affects his substantial rights and warrants correction.2
2
Just as we noted in Hughes, “[w]e of course offer no
criticism of the district judge, who followed the law and procedure
in effect at the time” of Harris’s sentencing. Hughes, 401 F.3d at545 n.4.
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Accordingly, we affirm Harris’s conviction, but vacate
his 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.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
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