United States v. Rico Resean Hubbard

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 29, 2005
No. 05-10433 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00096-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICO RESEAN HUBBARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 29, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Rico Resean Hubbard appeals his 92-month sentence, imposed after he pled
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). On appeal, Hubbard argues that: (1) § 922(g) attempts to regulate
non-economic intrastate criminal activity, and is, therefore, unconstitutional under
the Commerce Clause; and (2) he was sentenced in violation of United States v.
Booker, 543 U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), because the
district court enhanced his sentence based upon facts not charged in the indictment
or admitted by him, pursuant to a mandatory sentencing scheme.
We review constitutional challenges to statutes de novo. See United States
v. Dupree, 258 F.3d 1258 (11th Cir. 2001). Hubbard preserved his Booker error by
objecting, based on Blakely v. Washington, 542 U.S. ___, 124 S. Ct 2531, 159 L.
Ed. 2d 403 (2004), at sentencing. See United States v. Mathenia, 409 F.3d 1289,
1291 (11th Cir. 2005) (holding that appellant properly preserved Booker claim by
citing Blakely in his written objections to the PSI and reminding the court at
sentencing of his Blakely objection). Accordingly, he is entitled to preserved error
review, meaning that we review his claim de novo, but will reverse only for
harmful error. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005)
(citation omitted). “‘To find harmless error, we must determine that the error did
not affect the substantial rights of the parties.’” Id. (quoting United States v.
Hernandez, 160 F.3d 661, 670 (11th Cir. 1998)). “The burden is on the
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government to show that the error did not affect the defendant’s substantial rights.”
Id. (citing United States v. Olano, 507 U.S. 725, 741, 113 S. Ct. 1770, 1781, 123 L.
Ed. 2d 508 (1993)).
Upon thorough review of the record, as well as careful consideration of the
parties’ briefs, we affirm Hubbard’s conviction, but find Booker constitutional
error that the government cannot establish was harmless. We therefore vacate and
remand his sentence for resentencing consistent with Booker.
The relevant facts are these. On May 27, 2004, Hubbard was indicted for
one count of possession of a firearm by a convicted felon, in violation of §
922(g)(1). Without the benefit of a plea agreement, Hubbard entered a plea of
guilty to the crime charged. Hubbard also filed a “factual resume,” in which he
admitted the facts necessary to support his guilty plea, including the following: (1)
on May 16, 1995, he was convicted, in Alabama state court, of attempted second-
degree burglary, which is a felony crime punishable by a term of imprisonment
exceeding one year, and (2) on July 17, 2003, he knowingly possessed a Ruger,
9mm caliber, semi-automatic handgun. He also stipulated “that [the Ruger] was
manufactured outside the State of Alabama and therefore affected commerce by its
importation into the State of Alabama.” Hubbard then proceeded to sentencing.
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According to the presentence investigation report (“PSI”), Hubbard’s base
offense level was 24, pursuant to U.S.S.G. 2K2.1(a)(2)(A). The PSI recommended
the following adjustments: (1) a 2-level upward adjustment for engaging in
reckless endangerment during flight from law enforcement, U.S.S.G. § 3C1.2; (2) a
2-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a); and (3) a 1-
level reduction for Hubbard’s timely entry of a guilty plea, U.S.S.G. § 3E1.1(b).
With an adjusted offense level of 23 and a criminal history category of VI (based
on 14 criminal history points), his Sentencing Guidelines range was 92 to 115
months’ imprisonment.
Hubbard objected to the 2-level enhancement under § 3C1.2, arguing that
the adjustment was not warranted based on the police report, which indicated that
Hubbard stopped his vehicle after only a “brief vehicle pursuit.” Hubbard also
argued that enhancement was improper based on Blakely.
At the sentencing hearing, in support of the § 3C1.2 enhancement, the
government presented the testimony of Officer Raymond Cook, of the Mobile
Police Department, who was responsible for stopping Hubbard’s vehicle prior to
his arrest. Officer Cook described that after he turned on the blue lights of his
marked car, Hubbard increased the speed of his vehicle. Officer Cook pursued
Hubbard through a residential area for about a minute and a half, during which
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Hubbard drove approximately 15 miles per hour faster than the posted speed limit
of 30 miles per hour, ran stop signs without slowing down, and drove in opposing
traffic lanes, despite the presence of other traffic on the road. After Hubbard
pulled his vehicle over, Hubbard got out and ran away. Officer Cook chased him
and eventually arrested him.
After Officer Cook’s testimony, Hubbard noted that, during the chase, he did
not travel at “an excessive rate of speed,” and highlighted Officer Cook’s
testimony that no near collisions occurred. Hubbard argued that the facts did not
establish that he “recklessly created a substantial risk of death or serious bodily
injury.” The district court disagreed, noting that the “evidence [was] more than
adequate to supply the elements of reckless endangerment during flight,” and ruled
the two-level enhancement, under § 3C1.2, was warranted. Hubbard also reiterated
his Blakely argument, but the district court overruled the objection, finding that
Blakely was not applicable, pursuant to this Court’s controlling precedent.
The district court adopted the PSI’s sentencing calculations and sentenced
Hubbard to 92 months of imprisonment and 3 years of supervised release. This
appeal followed.
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As for Hubbard’s constitutional challenge to § 922(g)(1),1 he recognizes that
we squarely rejected his argument in Dupree, in which we held that a defendant’s
possession of a firearm that traveled in interstate commerce (facts that Hubbard
admitted in this case) is sufficient to satisfy the commerce element of the statute
and comply with the Commerce Clause. See 258 F.3d 1260; see also United States
v. McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (rejecting argument that Congress
exceeded its authority, under the Commerce Clause, by enacting § 922(g)(1);
noting that the felon-in-possession statute has an express jurisdictional element,
which would ensure that the firearm possession in question affects interstate
commerce)); cf. United States v. Ballinger, 395 F.3d 1218 (11th Cir.) (en banc)
(rejecting facial and as-applied challenges, based on the Commerce Clause, to 18
U.S.C. § 247, pursuant to the “approach this Circuit has repeatedly taken to the
nearly identical language found in § 922(g)”), pet. for cert. filed, No. 04-9627
(Apr. 7, 2005).
1
Section 922(g)(1) makes it unlawful for any person:
who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship or
transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. 922(g)(1).
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Where a panel of this Court has addressed an issue of law, “each succeeding
panel is bound by the holding of the first panel to address the issue of law, unless
and until that holding is overruled en banc, or by the Supreme Court.” United
States v. Hogan, 986 F.2d 1364, 1369 (1993). Under our uniform line of
controlling precedent, § 922(g) is a constitutional exercise of Congress’s
Commerce Clause power. Hubbard’s admission, in the factual resume he filed,
that he possessed a gun that had traveled in interstate commerce was sufficient to
demonstrate the required nexus to interstate commerce. Accordingly, we affirm
Hubbard’s conviction.
As for Hubbard’s Booker claim, the Sixth Amendment right to trial by jury
is violated where, under a mandatory Guidelines system, a sentence is increased
because of an enhancement based on facts found by the judge that were neither
admitted by the defendant nor found by the jury. Booker, 543 U.S. ___, 125 S. Ct.
at 749-56 (2005). The Booker constitutional error is the use of extra-verdict
enhancements to reach a Guidelines result that is binding on the sentencing judge.
United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). The Booker
non-constitutional, or statutory, error occurs when the district court sentences a
defendant under a mandatory sentencing scheme, even in the absence of a Sixth
Amendment enhancement violation. Id. This case concerns both types of error.
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The district court committed Booker constitutional error by sentencing Hubbard on
the basis of facts (reckless endangerment during flight) not alleged in the
indictment or admitted by him as part of his plea and statutory error by applying
the guidelines in a mandatory fashion.
A constitutional error is harmless if the government can show that “it is clear
beyond a reasonable doubt that the error complained of did not contribute to the
sentence obtained.” Paz, 405 F.3d at 948 (quotation and alteration omitted).
Based on our careful review of the record, with particular attention to the
sentencing transcript, we can find no indication of whether or not the district court
would have sentenced Hubbard similarly under an advisory scheme. Moreover,
Hubbard was sentenced to the low end of the Guidelines range. On this record, the
government cannot show that the error was harmless. Accordingly, we vacate
Hubbard’s sentence and remand his case to the district court for resentencing
consistent with Booker.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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