United States v. Taylor , 368 F. App'x 350 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4837
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRA TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cr-00587-RDB-1)
Argued: December 4, 2009 Decided: March 2, 2010
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Judge Michael and Judge Gregory joined.
ARGUED: David Warren Lease, SMITH, LEASE & GOLDSTEIN, LLC,
Rockville, Maryland, for Appellant. Jonathan Biran, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Traci L.
Robinson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
Ira Taylor pleaded guilty to a violation of 18 U.S.C.
§ 922(g)(1) (unlawful possession of a firearm by a convicted
felon) pursuant to a plea agreement in which the government
stipulated to the Sentencing Guidelines’ base offense level and
agreed to recommend a sentence within the final advisory
Guidelines range, which the presentence report calculated at 30
to 37 months’ imprisonment. The district court, however, found
as a fact of relevant conduct that Taylor had participated in
attempted first-degree murder and, based on that finding,
recomputed Taylor’s advisory Guidelines range at 120 months’
imprisonment. Following Taylor’s request for a variance
sentence, based on the factors in 18 U.S.C. § 3553(a), the
district court sentenced Taylor to 78 months’ imprisonment.
On appeal, Taylor argues (1) that the government breached
the plea agreement by alluding to and presenting facts of
relevant conduct and thereby attempting an “end-run” around its
obligations in the plea agreement, and (2) that the district
court effectively found Taylor guilty of attempted first-degree
murder without submitting the issue to a jury, in violation of
his Fifth and Sixth Amendment rights.
We reject Taylor’s arguments and affirm.
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I
When Taylor was arrested in Baltimore, Maryland, on May 17,
2006, on two state warrants for two separate attempts of first-
degree murder and related offenses, he was found to be in
possession of a loaded .38 caliber handgun. Because Taylor had
previously been convicted of a felony, he was prosecuted in this
action for unlawful possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). Pursuant to a plea agreement, he pleaded
guilty to the firearms charge, expecting to receive a sentence
in the range of 30 to 37 months’ imprisonment, based on the
government’s stipulations and agreements.
In the plea agreement, the government stipulated to a base
offense level of 20 and a reduction of that offense level of up
to 3 levels for acceptance of responsibility, subject to
specified conditions not relevant here. The agreement indicated
that the parties had made no agreement as to Taylor’s criminal
history or his criminal history category. The parties agreed
that “with respect to the calculation of the advisory guidelines
range, no other offense characteristics, Sentencing Guidelines
factors, or potential departures or adjustments . . . will be
raised or are in dispute,” and the government agreed to
recommend a sentence within the “final advisory guideline
range.” But each of the parties reserved the right “to bring to
the Court’s attention at the time of sentencing . . . all
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relevant information concerning the Defendant’s background,
character and conduct.”
The plea agreement included the parties’ acknowledgment
that neither the court nor the probation office was bound by the
plea agreement and that “the Court is under no obligation to
accept [the government’s] recommendations, and the Court has the
power to impose a sentence up to and including the statutory
maximum stated above [10 years’ imprisonment].”
In the presentence report that followed, the probation
officer recommended a base offense level of 20 and a 3-level
downward adjustment for acceptance of responsibility, for a
total offense level of 17. In view of Taylor’s two prior drug
convictions, he fell within criminal history Category III,
yielding an advisory Guidelines range of 30 to 37 months’
imprisonment. The presentence report also reported that Taylor
had three juvenile delinquency adjudications involving drugs and
guns and six arrests for drug and gun violations, for which he
was not prosecuted. Among the six arrests was the arrest on May
17, 2006, made on warrants charging him with two counts of
attempted first-degree murder and related offenses. Those
charges, however, were not prosecuted by the State and the
docket was marked “nolle prosequi.”
Taylor filed objections to the presentence report and
requested a downward departure under U.S.S.G. § 4A1.3(b) based
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on his claim that his criminal history Category III over-
represented the seriousness of his criminal history and
likelihood of recidivism. The government submitted a memorandum
in opposition, arguing that, if anything, Taylor’s criminal
history category under-represented Taylor’s dangerousness. The
government pointed to the arrest for two attempted first-degree
murder charges, which, although not prosecuted, involved a
shooting of James Irving on April 2, 2006, and the shooting of
Montay Powell on May 1, 2006. The government’s memorandum
stated that Irving identified Taylor as the man who had shot
him, that several eye witnesses identified Taylor as the man who
had shot Powell, and that the government intended to present
evidence at sentencing to prove Taylor’s conduct. In view of
this criminal history, the government recommended a sentence at
the high end of the 30-37 month Guidelines range.
Taylor replied to the government’s memorandum, asserting
that the government’s argument for a high sentence based on the
attempted murders was unfounded. He complained that the
government was attempting to try Taylor for crimes that had
never been proved against him beyond a reasonable doubt. Taylor
concluded by reiterating his request that the court depart
downwardly as his criminal history category over-represented his
actual criminal history.
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At the first sentencing hearing held on May 30, 2008, the
district court stated, in light of the conduct alluded to by the
government in its sentencing memorandum, that if it determined
that Taylor had in fact shot either Irving or Powell, it would
consider an upward departure under the Sentencing Guidelines or
an increased variance sentence pursuant to 18 U.S.C. § 3553(a).
It admonished Taylor that the court could impose a sentence of
up to the maximum of 10 years’ imprisonment. At Taylor’s
request, the court granted Taylor a continuance to allow him to
prepare a response to the court’s observations.
At the second sentencing hearing held on July 24, 2008, the
court granted Taylor’s motion to exclude evidence about the
Powell shooting inasmuch as Powell had, in the interim, been
murdered and there would be no direct evidence about the earlier
shooting. The court, however, denied Taylor’s motion to exclude
evidence of the Irving shooting, as the government was prepared
to present the testimony of Irving himself, as well as a
Baltimore City detective.
After hearing the testimony and Taylor’s cross-examination
of the witnesses, the court pointed out that the standard for
judicial factfinding at sentencing was the preponderance-of-the-
evidence standard, even in the aftermath of United States v.
Booker, 543 U.S. 220 (2005). After receiving arguments from
counsel about the evidence, the district court found that
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Irving’s testimony was credible and that the evidence that
Taylor had shot Irving was clear and convincing, a standard that
the court applied out of “an abundance of caution.” Based on
that finding, the court recalculated Taylor’s Guidelines’
offense level, considering the Irving shooting as relevant
conduct and applying cross-references to the attempted murder
Guidelines. The recomputation resulted in an offense level of
33, which, when combined with Taylor’s criminal history Category
III, yielded a Sentencing Guidelines range of 168 to 210 months’
imprisonment. Inasmuch as the statutory maximum for the
§ 922(g)(1) offense was 120 months’ imprisonment, the court held
that a 120-month sentence was the proper Guidelines range. See
U.S.S.G. § 5G1.1(a).
The court then invited arguments from counsel on
application of the § 3553 factors and on what sentence was
appropriate. The government again argued for a sentence at the
high end of the Guidelines range calculated under the original
plea agreement’s stipulated offense level, i.e., 30 to 37
months’ imprisonment. It reiterated that its presentation of
facts about the attempted murder of Irving “was only really in
response to defense counsel’s motion that the criminal history
was overrepresented.” The government made no other request
based on the court’s newly recalculated Guidelines range,
stating instead, “[W]e just seek a sentence at the high end of
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the Guidelines and we will leave it at that.” Counsel for
Taylor requested a sentence at the low end of the original
advisory Guidelines range. When the court retorted that the
Guidelines range was recalculated to be 120 months’
imprisonment, Taylor’s counsel proposed that the court sentence
Taylor to 60 months’ imprisonment.
After considering the Guidelines range, the § 3553(a)
factors, and the arguments of counsel, the district court
sentenced Taylor to 78 months’ imprisonment.
Taylor filed this appeal, contending that the government
breached the plea agreement and that the district court denied
Taylor his constitutional rights under the Fifth and Sixth
Amendments in finding that Taylor shot Irving.
II
Taylor claims that the government breached the plea
agreement by alluding to evidence of the two attempted murders
in its sentencing memorandum and by presenting evidence on the
Irving shooting. He reasons:
The trial court used this allegation of attempted
murder as “relevant conduct” under U.S.S.G. § 1B1.3 to
significantly increase Mr. Taylor’s offense guideline
calculation. Consequently, the Government’s
introduction of this alleged “relevant conduct”
constituted nothing but a “thinly veiled end-run”
around the Government’s previous agreement to a
particular offense guideline calculation in the plea
agreement.
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In support, Taylor cites United States v. Bowe, 257 F.3d 336,
345-46 (4th Cir. 2001), where we held that the defendant’s
introduction and then withdrawal of evidence prohibited by a
plea agreement was “a thinly veiled end-run around” the
defendant’s obligations in the plea agreement not to introduce
such evidence.
Because Taylor did not raise this breach-of-plea agreement
claim below, we review it now for plain error. For an appellate
court to notice plain error, “[t]here must be an ‘error’ that is
‘plain’ and that ‘affect[s] substantial rights.’ Moreover, Rule
52(b) leaves the decision to correct the forfeited error within
the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” United States v. Olano, 507 U.S. 725,
732 (1993) (quoting United States v. Young, 470 U.S. 1, 15
(1985) (in turn quoting United States v. Atkinson, 297 U.S. 157,
160 (1936))).
Taylor’s argument focuses primarily on paragraph 8 of the
plea agreement, which obligates the government to abstain from
introducing any evidence beyond that stipulated to in the
agreement concerning relevant offense conduct and Guidelines
factors. But this argument focuses too narrowly, ignoring other
provisions of the agreement that authorize both parties to
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dispute Taylor’s criminal history and that, in paragraph 10,
authorize the government to offer evidence concerning the
defendant’s “background, character and conduct.” His argument
also fails to recognize that the evidence offered by the
government was properly responsive to Taylor’s own argument that
his criminal history Category III over-represented his criminal
history.
The plain language of the agreement authorizes the
government to introduce evidence both on Taylor’s criminal
history and on his “background, character and conduct.” The
government did not, as Taylor contends, introduce the evidence
of the Irving shooting to make an argument for a different base
offense level from that stipulated to in the agreement or to
introduce Guidelines factors forbidden by paragraph 8. Indeed,
throughout the proceedings -- even after the court recalculated
the Guidelines range at 120 months’ imprisonment -- the
government continued to recommend that Taylor be sentenced in
the range of 30 to 37 months’ imprisonment, consistent with its
stipulation and agreement.
The government only brought up the fact of the shootings to
respond to Taylor’s assertion that his criminal history category
over-represented his criminal history and his dangerousness.
Moreover, Taylor’s criminal history was, in any event, fair game
for the parties, as they agreed not to stipulate to an
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appropriate criminal history or criminal history category. In
alluding to the shootings, the government focused specifically
on rebutting Taylor’s contention about his criminal history,
asserting that, if anything, Taylor’s criminal history Category
III understated his criminal history and dangerousness. Yet, in
making this argument, the government continued to recommend a
sentence at the top end of the originally calculated Guidelines
range of 30 to 37 months’ imprisonment.
Finally, even after the district court, on its own
initiative, recalculated Taylor’s offense level and Guidelines
range at 120 months’ imprisonment, the government did not
recommend a sentence within that range -- as the plea agreement
authorized it to do -- but continued to recommend a sentence at
the high end of the original guideline range of 30 to 37 months’
imprisonment.
Accordingly, we reject Taylor’s argument that the
government breached the plea agreement. See United States v.
Fentress, 792 F.2d 461, 464 (4th Cir. 1986) (“While the
government must be held to the promises it made, it will not be
bound to those it did not make”).
III
Taylor also makes two interrelated arguments challenging
the district court’s factfinding during sentencing regarding the
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attempted-murder conduct. First, he urges this court to reverse
based on the position taken by Justice Scalia in his concurrence
in Rita v. United States, 127 S. Ct. 2456, 2478 (2007) (Scalia,
J., concurring in part and concurring in the judgment), where he
commented that in reviewing a sentence for substantive
reasonableness, certain critical facts that are necessary for an
in-guidelines sentence to be lawful must be found by a jury
beyond a reasonable doubt, as distinguished from other facts
that a sentencing court may choose to consider in exercising its
discretion, which may be found by a preponderance of the
evidence. Taylor thus contends that because his sentence would
have been substantively unreasonable but for the judicial
factfinding determining that he had committed attempted murder,
the fact of the attempted murder needed to be found by a jury
beyond a reasonable doubt. He maintains that such “as-applied”
challenges to the constitutionality of judicial factfinding were
not foreclosed by Rita.
This argument, however, fails to account for numerous post-
Booker and post-Rita opinions permitting a sentencing court to
consider during sentencing uncharged or even acquitted criminal
conduct when the facts of that conduct are found by a
preponderance of the evidence. See, e.g., United States v.
Grubbs, 585 F.3d 793, 799 (4th Cir. 2009) (holding that, for
sentencing purposes, a court may consider uncharged conduct
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found by a preponderance of the evidence); United States v.
Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (holding that, so
long as the Guidelines range is treated as advisory, a
sentencing court may consider and find facts by a preponderance
of the evidence, provided that those facts do not increase a
sentence beyond the statutory maximum). The same reasoning
answers Taylor’s argument that he had a right to have the
attempted murder finding made by a jury beyond a reasonable
doubt.
Taylor also makes a more general contention that the
district court effectively convicted him of attempted murder
without the benefit of a jury and proof beyond a reasonable
doubt, in violation of his rights under the Fifth and Sixth
Amendments.
This argument, which is similar to his first argument, has
been specifically rejected by us numerous times. So long as the
district court sentences a defendant within the statutory
maximum authorized by the jury findings or guilty plea, the
court can consider facts that it finds by a preponderance of the
evidence to exercise its discretion in determining the
appropriate sentence within that maximum. See, e.g., Benkahla,
530 F.3d. at 512; United States v. Battle, 499 F.3d 315, 322-23
(4th Cir. 2007). Here, Taylor pleaded guilty to a violation of
§ 922(g)(1), with a maximum sentence of 120 months’
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imprisonment, and the district court appropriately imposed a
sentence of 78 months’ imprisonment, within the maximum, based
on facts that the court found by a preponderance of the
evidence, indeed by clear and convincing evidence.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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