United States v. Gore , 195 F. App'x 145 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4566
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VANDER MOORE GORE, JR.,
Defendant - Appellant.
No. 02-4908
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY LEE GORE, a/k/a Manager,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. Nos. 04-1154; 04-7986)
Submitted: May 26, 2006 Decided: August 18, 2006
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
William Isaac Diggs, LAW OFFICES OF WILLIAM ISAAC DIGGS, Myrtle
Beach, South Carolina, for Appellant Vander Moore Gore, Jr.;
Johnny Lee Gore, Appellant Pro Se. Jonathan S. Gasser, United
States Attorney, Rose Mary Parham, Robert C. Jendron, Assistant
United States Attorneys, Florence, South Carolina; Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Vander Moore Gore, Jr. (“Vander Gore”) and Johnny Lee
Gore (“Johnny Gore”) were convicted by a jury in the United States
District Court for the District of South Carolina on charges of
conspiracy to possess with intent to distribute multiple substances
in violation of 21 U.S.C. § 841(a)(1) (2000). Vander Gore was
sentenced to life imprisonment; Johnny Gore was sentenced to 360
months’ imprisonment. On direct appeal, we affirmed. See United
States v. Gore, Nos. 02-4566, 02-4908, 102 Fed. App’x 292 (4th Cir.
June 22, 2004) (unpublished). We also denied Johnny Gore’s motion
for permission to file a pro se supplemental brief in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Pursuant to United
States v. Booker, 543 U.S. 223 (2005), the Supreme Court of the
United States vacated the judgments and remanded both cases to this
court for further consideration. See Gore v. United States, 125 S.
Ct. 1746 (2005) (Vander Gore); Gore v. United States, 125 S. Ct.
1407 (2005) (Johnny Gore).
In Booker, the Supreme Court held that when a defendant
is sentenced under a mandatory guidelines scheme, “[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.” 543 U.S.
at 224. Thus, error under the Sixth Amendment occurs when the
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district court imposes a sentence greater than the maximum
permitted based on facts found by a jury or admitted by the
defendant. Id..
Subsequently, in United States v. Hughes, 401 F.3d 540,
546 (4th Cir. 2005), this court held that a sentence that was
imposed under the pre-Booker mandatory sentencing scheme and was
enhanced based on facts found by the court, not found by a jury or
admitted by the defendant, constitutes plain error. That error
affects the defendant’s substantial rights and warrants reversal
under Booker when the record does not disclose what discretionary
sentence the district court would have imposed under an advisory
guideline scheme. Hughes, 401 F.3d at 546-56. We directed
sentencing courts to calculate the appropriate guideline range,
consider that 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 the district court imposes a
sentence outside the guideline range, the court should state its
reasons for doing so. Hughes, 401 F.3d at 546; see also United
States v. Green, 436 F.3d 449, 459-56 (4th Cir. 2006). Hughes also
recognized “that after Booker, there are two potential errors in a
sentence imposed pursuant to the pre-Booker mandatory guidelines
regime: a Sixth Amendment error, which Hughes raised, and an error
in failing to treat the guidelines as advisory, which Hughes did
not raise.” Hughes, 401 F.3d at 552.
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In United States v. White, 405 F.3d 208 (4th Cir.), cert.
denied, 125 S. Ct. 668 (2005), we held that treating the guidelines
as mandatory, even in the absence of a Sixth Amendment violation,
was plain error in light of Booker. White, 405 F.3d at 216-17. We
declined to presume prejudice in this situation, id. at 217-22,
holding that the “prejudice inquiry, therefore, is . . . whether
after pondering all that happened without stripping the erroneous
action from the whole, . . . the judgment was . . . substantially
swayed by the error.” Id. at 223 (internal quotation marks and
citations omitted). To make this showing, a defendant must
“demonstrate, based on the record, that the treatment of the
guidelines as mandatory caused the district court to impose a
longer sentence than it otherwise would have imposed.” Id. at 224.
Because “the record as a whole provide[d] no nonspeculative basis
for concluding that the treatment of the guidelines as mandatory
‘affect[ed] the district court’s selection of the sentence
imposed,’” id. at 223 (quoting Williams v. United States, 503 U.S.
193, 203 (1992)), we concluded in White that the error did not
affect the defendant’s substantial rights and thus affirmed the
sentence. Id. at 225; see also United States v. Collins, 412 F.3d
at 524-25 (finding that defendant failed to demonstrate prejudice
from being sentenced under the mandatory sentencing guidelines).
Vander Gore (No. 02-4566) was indicted and convicted of
participating in a drug trafficking conspiracy involving fifty
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grams of crack cocaine and five kilograms of cocaine. These
amounts correspond to a base offense level of thirty-two. See U.S.
Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(4). The
presentence report (“PSR”) assigned Vander Gore a base offense
level of thirty-eight, based on 524.46 grams of crack cocaine and
285.04 kilograms of powder cocaine, resulting in a combined
marijuana equivalency of 67,497.2 grams. See USSG § 2D1.1(c)(1).
The PSR also recommended a four-level enhancement for a
leadership role in the conspiracy, pursuant to USSG § 3B1.1(a), and
a two-level enhancement for obstruction of justice, pursuant to
USSG § 3C1.1. Therefore, the PSR recommended a total offense level
of forty-four. The district court adopted the PSR’s
recommendations, including the enhancements by a preponderance of
the evidence, and the total offense level of forty-four resulted in
Vander Gore’s life sentence. See USSG Ch. 5, Pt. A (sentencing
table).
Absent judicial factfinding concerning the drug weight,
as well as the enhancements for Vander Gore’s leadership role and
obstruction of justice, Vander Gore’s total offense level would
have been thirty-two. Based on a criminal history category of I,
the guidelines would have provided for 121-151 months’
imprisonment. See USSG Ch. 5, Pt. 1 (sentencing table). Because
Vander Gore’s sentence was imposed under the pre-Booker mandatory
sentencing scheme and was enhanced based on facts found by the
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court, not found by a jury or admitted by Vander Gore, his life
sentence constitutes plain error that affected his substantial
rights. See Hughes, 401 F.3d at 546. Therefore, we vacate Vander
Gore’s sentence and remand the case to the district court for
resentencing in light of Booker.
The jury convicted Johnny Gore (No. 02-4908) of
distribution and possession with intent to distribute 500 grams or
more of cocaine, and the district court sentenced him to 360
months’ imprisonment. Because Johnny Gore had previously been
convicted of two prior felony drug convictions, he qualified as a
career offender. See USSG § 4B1.1(a). Pursuant to USSG
§ 4B1.1(b), because Gore’s statutory maximum sentence was life
imprisonment, see 21 U.S.C. § 841(b)(1)(B)(ii)(II) (2000), the PSR
provided for an offense level of thirty-seven. As a career
offender, Johnny Gore’s criminal history category was VI. See USSG
§ 4B1.1(b). Accordingly, Johnny Gore’s range of imprisonment under
the then-mandatory guidelines was 360 months to life. See USSG Ch.
5, Pt. A (sentencing table). Therefore, his 360-month sentence,
which was only enhanced based on his prior convictions, did not
violate the Sixth Amendment. See United States v. Cheek, 415 F.3d
349, 352-53 (4th Cir. 2005).
However, even in the absence of Sixth Amendment error,
the district court’s treatment of the sentencing guidelines as
mandatory was erroneous. See White, 405 F.3d at 216-17. We
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conclude that, in light of Johnny Gore’s attempts to raise the
sentencing issue on direct appeal* and on other occasions, he has
preserved the issue. See generally United States v. Rodriguez, 433
F.3d 411, 415-16 (4th Cir. 2006). Therefore, we review to
determine whether the error was harmless. See Booker, 543 U.S. at
268 (noting that appellate courts may apply the plain error and
harmless error doctrines in determining whether resentencing is
required); Fed. R. Crim. P. 52(a) (stating that an appellate court
may disregard any error that does not affect substantial rights).
On harmless error review, the Government bears the burden
of showing beyond a reasonable doubt that the error did not affect
Johnny Gore’s substantial rights. United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003); United States v. Stokes, 261 F.3d
496, 499 (4th Cir. 2001). The Government has not met this burden,
and indeed concedes Johnny Gore should be resentenced under an
advisory application of the sentencing guidelines. We vacate
Johnny Gore’s sentence and remand his case to the district court
for resentencing in light of Booker. Furthermore, we deny Johnny
Gore’s motions for summary remand, to file exhibits, and to file a
pro se supplemental brief, in which he makes the specious argument
*
Although Johnny Gore sought to file a pro se supplemental
brief in his initial direct appeal raising a challenge to the
imposition of sentence pursuant to the then-mandatory guidelines
claim, that brief was rejected because he was represented by
counsel and thus had no independent right to file a pro se
supplemental brief.
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that his sentence for conspiracy to possess with intent to
distribute 500 grams or more of cocaine is constitutionally infirm
because the conduct was never charged by indictment. The
superseding indictment clearly alleged a conspiracy involving,
among other controlled substances, five kilograms or more of
cocaine.
In sum, we affirm the convictions of both Vander Gore and
Johnny Gore for the reasons set forth in our 2004 opinion
addressing these appeals. We vacate both Vander Gore’s and Johnny
Gore’s sentences and remand for further proceedings in light of
Booker. 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 AND REMANDED IN PART
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