United States v. William J. McCorkle

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-14793 ELEVENTH CIRCUIT
July 22, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 98-00052-CR-ORL-19-JGG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHANTAL McCORKLE,
WILLIAM J. McCORKLE,
a.k.a. William T. McCorkle,
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Middle District of Florida
_________________________
(July 22, 2005)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
In United States v. Venske, 296 F.3d 1284 (11th Cir. 2002, cert. denied,
124 S. Ct. 549 (2003), we affirmed appellants’ multiple convictions, including a
money laundering conspiracy, for participating in a fraudulent telemarketing
scheme. We vacated their sentences, however, and remanded the case for
resentencing because the district court, in establishing the base offense levels for
the money laundering conspiracy, failed to determine which object of the
conspiracy the evidence established, i.e., that appellants had executed the
conspiracy to promote the fraud or to conceal the fraud or both. Id. at 1292-94.
By the time the district court scheduled the resentencing hearing, the
Supreme Court had decided Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000). At the hearing, appellants, citing Apprendi,,
contended that the Sixth Amendment precluded the district court from making the
above determination regarding the object(s) of the money laundering conspiracy.
They also objected in a general way to the court’s use of facts they did not admit
or the jury did not find in determining the appropriate sentence ranges under the
Guidelines. The court overruled their objections and resentenced each of them to
same sentences initially imposed—prison terms totaling 292 months. They
appeal those sentences.
Before the briefing of this appeal closed, the Supreme Court, in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 402 (2004), made
Apprendi’s rationale applicable to state mandatory guidelines sentencing systems
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similar to the federal Sentencing Guidelines System. And after briefing closed,
the Court made Apprendi and Blakley applicable to the federal system. United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In their
briefs, appellants renew their Apprendi objections, which have now been
transformed into Booker objections; we therefore treat them as such.
Under Booker, any fact, other than a prior conviction, which is necessary to
support a sentence exceeding the maximum sentence authorized by statute must be
established by the defendant’s admission or the verdict of a jury (based on the
beyond-a-reasonable-doubt standard). Booker, 543 U.S. at ___, 125 S.Ct. at 756.
District courts still are to make the appropriate guideline calculations using the
“real” facts of the crime of conviction. Booker, 543 U.S. at ___, 125 S.Ct. at 759-
62, 764, 767. Booker error, then,
is not that there were extra-verdict enhancements –
enhancements based on facts found by the judge that
were not admitted by the defendant or established by the
jury verdict – that led to an increase in the defendant’s
sentence. The error is that there were extra-verdict
enhancements used in a mandatory guidelines system.
United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005), cert. denied
(No. 04-1148) (June 20, 2005).
To preserve Booker error, a defendant must raise a constitutional objection
by referring to the Sixth Amendment, Apprendi or other related cases, or the right
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to have the jury decide the disputed fact, or raise a challenge to the role of the
judge as factfinder with regard to sentencing. United States v. Dowling, 403 F.3d
1242, 1246 (11th Cir. 2005). Because appellants presented Apprendi objections to
the district court’s Guidelines calculations, we treat the objections as preserved
error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005).
Booker admits of two possible errors. First, as noted above, Sixth
Amendment error can occur when, under a mandatory guidelines system, a
sentence is enhanced as a result of findings made by the judge that went beyond
the facts admitted by the defendant or found by the jury. Id. Second, even if no
Sixth Amendment violation occurs –that is to say, the sentence is not based on any
judge-determined enhancements—Booker statutory error can occur if the
defendant is sentenced under a mandatory guideline scheme. United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
There are two harmless error standards. In a case of constitutional error,
the government must show beyond a reasonable doubt that the error did not
contribute to the defendant’s ultimate sentence. Paz, 405 F.3d at 948. The
government cannot carry this burden if it is evident that, had the district court
treated the Guidelines as advisory rather than mandatory, the sentence would have
been shorter. Id. at 949. In a case of statutory error, the error is harmless, if
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viewing the proceedings in their entirety, we determine that the error did not affect
the sentence or had but very slight affect. United States v. Mathenia, No. 04-
15250, slip. op. at 2328-29 (11th Cir. May 23, 2005). Once again, the government
has the burden of proving harmlessness.
Here, both constitutional and statutory error occurred. The district court
sentenced both appellants using a mandatory guidelines scheme and enhanced
their sentences based on facts they neither admitted nor the jury found. Moreover,
the court repeatedly expressed misgivings about the severity of the sentences it
was handing down. In sum, with respect to the constitutional error, the
Government has failed to show beyond a reasonable doubt that the error was
harmless, and with respect to the statutory error, it fails to meet Mathenia’s test.
We therefore vacate appellants’ sentences and remand the case for
resentencing.1
SO ORDERED.
1
In addition to the Booker errors, appellants challenge the methodology the district court
employed in determining the value of the funds laundered. Among other things, they contend
that the court’s use of gross business receipts was inappropriate; instead, the court should have
determined the value using the method prescribed for calculating fraud loss under U.S.S.G. §
2F1.1. Although the court will, on remand, hold a new sentencing hearing, we address these
contentions because they are likely to be renewed. We have considered the arguments appellants
have advanced in their briefs and find them without merit. In short, we find no clear error in the
manner in which the court arrived at its guideline determinations. Thus, on remand, the court’s
task will be, first, to follow the applicable Guidelines, and, then, as Booker instructs, address the
statutory sentencing purposes set out in 18 U.S.C. § 3553(a). After taking these steps, the court
will fashion sentences it deems appropriate and reasonable under the circumstances.
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