United States v. David L. Quigg , 152 F. App'x 551 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3782
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
David L. Quigg, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 7, 2005
Filed: October 20, 2005
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Before MURPHY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
After David L. Quigg pleaded guilty to manufacturing and conspiring to
manufacture a methamphetamine mixture containing 50 grams or more of actual
methamphetamine, the district court1 sentenced Quigg to 93 months imprisonment and
3 years supervised release. He appeals, and we affirm.
On appeal Quigg argues that the district court violated the principles in Blakely
v. Washington, 124 S. Ct. 2531 (2004), by enhancing his sentence based on drug
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
quantities that were neither charged in the indictment nor admitted by him, and by
sentencing him pursuant to a mandatory sentencing scheme that is no longer
constitutional. This argument fails. A district court commits error by enhancing a
defendant’s sentence based on judge-found facts pursuant to a mandatory Guidelines
scheme, see United States v. Booker, 125 S. Ct. 738, 756, 764 (2005); United States
v. Salter, 418 F.3d 860, 862 (8th Cir. 2005), and here, the district court relied on facts
in the presentence report (PSR) showing that Quigg was accountable for drugs having
a marijuana equivalency of 3,496 kilograms. Quigg does not contend on appeal,
however, that the facts recited in the PSR do not support the drug amount attributable
to him, and having failed in the district court to object specifically to the factual
allegations, Quigg is deemed to have admitted these facts for purposes of Booker. See
United States v. McCully, 407 F.3d 931, 933 (8th Cir. 2005).
The district court did err under Booker by applying the Guidelines as a
mandatory sentencing scheme, see Booker, 125 S. Ct. at 764 (holding Guidelines to
be only advisory), and Quigg preserved the error at sentencing by invoking Blakely,
see United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005) (en banc), petition
for cert. filed, (U.S. July 27, 2005) (No. 05-5547). Nevertheless, we conclude that the
government has shown that the error is harmless. See United States v. Haidley, 400
F.3d 642, 644-45 (8th Cir. 2005). At sentencing, the district court discussed at length
why it had chosen a sentence in the middle of the Guidelines range. The court
expressed disappointment that Quigg had chosen to blame others for his criminal
conduct. The court also commented that it was troubled by Quigg’s post-plea
repeated use of methamphetamine, and that it was declining to sentence him at the
bottom of the Guidelines range as a consequence for that behavior, and to deter similar
conduct in others. The court added that the sentence imposed was adequate to address
the criminal conduct, and thus that there was no reason to go to the top of the
Guidelines range. In these circumstances, we harbor no “grave doubt whether the
application of the mandatory guidelines substantially influenced the district court’s”
selection of Quigg’s sentence. See United States v. Brooks, 417 F.3d 982, 985 (8th
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Cir. 2005) (mandatory application of the Guidelines was harmless error where district
court “sentenced [defendant] to the middle of the applicable guideline range, stating
explicitly that it did not ‘believe that this is a low end of the guidelines case’” and “it
consider[ed] the need for adequate punishment, deterrence, and protection of the
public”).
Accordingly, we affirm Quigg’s sentence.
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