United States v. Jonathan Aaron Tompkins

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 13, 2005
No. 04-16436 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00069-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN AARON TOMPKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 13, 2005)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Jonathan Aaron Tompkins appeals his 103-month sentence pursuant to a
guilty plea for possession of firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). He concedes that, in his plea agreement, he waived his Sixth
Amendment right to have a jury find sentencing facts beyond a reasonable doubt.
He argues, however, that the district court plainly erred by applying the United
States Sentencing Guidelines as mandatory, in light of Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125
S. Ct. 738 (2005), and asserts that the district court’s express limitation of its
sentencing decision to factors within the guidelines was held unconstitutional in
Booker. He further asserts that, although the district court commented that the
sentence satisfied the 18 U.S.C. § 3553(a) purposes of punishment and deterrence,
it did not indicate whether the sentence was designed to satisfy other § 3553(a)
interests, such as rehabilitation, educational training, or medical care. He also
contends that the district court violated his Sixth Amendment rights by relying on
his prior convictions to enhance his convictions, asserting that Almendarez-Torres
v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) 1 is no longer good law in
light of Shepard v. United States, 544 U.S. ___, 125 S. Ct. 1254 (2005).
In his plea agreement, Tompkins waived his Booker Sixth Amendment right
to have a jury find the sentencing facts beyond a reasonable doubt. R1-29 at 5.
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In Almendarez-Torres, the Supreme Court held that the government was not required to
allege in an indictment or prove beyond a reasonable doubt a defendant’s prior convictions for a
district court to use those convictions for the purpose of sentence enhancement. Almendarez-Torres,
523 U.S. at 241, 243-44, 247-48, 118 S. Ct. at 1229, 1230-31, 1232-33.
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He concedes plain error review as to the Booker statutory issue regarding the
district court’s application of the guidelines as mandatory. To prevail under a
plain error standard, an appellant must show that there is: (1) an error; (2) that the
error is plain; and (3) that the plain error affected substantial rights. United States
v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005). Once the appellant proves
these three elements, we may notice the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 1329
(internal citation omitted).
Based on the Supreme Court’s holdings in Booker, there can be two
Booker errors: (1) a Sixth Amendment, constitutional, error in the imposition of a
sentencing enhancement based on judicial findings that go beyond the facts
admitted by the defendant or found by the jury, and (2) a statutory error in the
imposition of a sentence under a mandatory guidelines system. Id., 400 F.3d at
1330-31. Even in the absence of a Booker constitutional error, a district court errs
by imposing a sentence under a mandatory Guidelines scheme. See id.
A plain error may be established under the first two prongs of the plain error
test when a statutory error exists; that is, the defendant is sentenced under
mandatory rather than advisory guidelines. Id. The defendant's burden with
respect to the third prong, however, “is to show that the error actually did make a
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difference.” United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.), cert.
denied, U.S. , 125 S. Ct. 2935 (2005). “[I]n applying the third prong, we ask
whether there is a reasonable probability of a different result if the guidelines had
been applied in an advisory instead of binding fashion by the sentencing judge in
this case.” Id. at 1301. Reasonable probability of a different result means a
probability “sufficient to undermine confidence in the outcome.” Id. at 1299
(citation and punctuation omitted). Under the fourth prong, we consider the plain
error’s affect on the judicial proceedings and look for such factors as the district
judge’s express desire to impose a sentence different than that imposed. Shelton,
400 F.3d at 1333-34. We have consistently held that a sentence even at the low
end of the guideline range, standing alone, is insufficient to carry a defendant’s
burden demonstrating a reasonable probability of a lesser sentence under advisory
guidelines. See United States v. Fields, 408 F.3d 1356, 1361 (11th Cir. 2005)
(holding that the fact that the defendant was sentenced at the bottom of the
mandatory guideline range, without more, is insufficient to satisfy the third prong’s
requirement that the defendant show a reasonable probability of a lesser sentence
under an advisory guideline system; accord United States v. Cartwright, 413 F.3d
1295, 1301 (11th Cir. 2005)).
Even with the government’s concession that district court committed
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Booker error that was plain by applying the sentencing guidelines as binding,
Tompkins fails to set forth any evidence to show that there is a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge. See Shelton, 400 F.3d at 1330-
31. The district court sentenced Tompkins to a term of imprisonment for 103
months, which is within the middle of the guideline range. The district judge
explained: “This is at the midpoint of the guideline range, the Court not finding
any aggravating or mitigating circumstances not already accounted for by the
guidelines. I do find this meets the goals of punishment and hopefully will act as a
deterrent to anyone else who might consider similar criminal activity.” R4 at 10.
The district court said nothing else, leaving no indication or expression of
“reasonable probability” that it would have sentenced Tompkins to a lesser
sentence had the guidelines been merely advisory.
Tompkins also cites no authority requiring the district court’s express
statement that it considered each penal purpose listed in § 3553(a), as opposed to
simply stating that the sentence meets “the goals of punishment and hopefully will
act as a deterrent.” Id. at 10-11; see, e.g., United States v. Robles, 408 F.3d 1324,
1328 (11th Cir. 2005) (per curiam) (stating that even post-Booker, “we would not
expect the district court in every case to conduct an accounting of every § 3553(a)
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factor . . . and expound upon how each factor played a role in its sentencing
decision”). There was no reversible, statutory Booker error in sentencing
Tompkins under a mandatory guideline scheme because he failed to show that the
plain error affected his substantial rights. See Fields, 408 F.3d at 1361.
Although Tompkins also argues that the use of prior convictions to enhance
the sentence is unconstitutional and that Almendarez-Torres is no longer good law
in light Shepard, his plea agreement waiver also covers this issue. Further, we
have consistently held that held that Almendarez-Torres remains good law until it
is overruled by the Supreme Court. See United States v. Camacho-Ibarquen, 410
F.3d 1307, 1316 n.3 (11th Cir. 2005) (per curiam) (“Although recent decisions,
including Shepard, . . . may arguably cast doubt on the future prospects of
Almendarez-Torres’s holding regarding prior convictions, the Supreme Court has
not explicitly overruled Almendarez-Torres.”).
For the reasons stated above, Tompkins’s sentence is
AFFIRMED.
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