United States v. Cabbagestalk

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-9-2006
USA v. Cabbagestalk
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1316
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Cabbagestalk" (2006). 2006 Decisions. Paper 930.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/930
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-1316
UNITED STATES OF AMERICA
v.
MARVIN CABBAGESTALK,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No.: 04-CR-89
District Judge: The Honorable Alan N. Bloch
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 20, 2005
Before: SMITH, BECKER, and NYGAARD, Circuit Judges*
(Filed: June 9, 2006)
OPINION
SMITH, Circuit Judge.
In November of 2003, police officers in the City of Pittsburgh responded to a
*
This case was argued before the panel of Judges Smith, Becker and Nygaard. Judge
Becker died on May 19, 2006, before the filing of the Opinion and Judgment. The
Opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).
report that shots were fired in the direction of a residence by a bald, black man in a silver
car. The police apprehended the car and arrested Marvin Cabbagestalk, who fit the
description given by witnesses. A grand jury subsequently returned a one count
indictment against Cabbagestalk, charging him with unlawful possession of a firearm by
a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At a change of
plea hearing on September 29, 2004, the District Court conducted its Rule 11 colloquy
and specifically asked Cabbagestalk if he understood that the maximum penalty was ten
years imprisonment. Cabbagestalk replied in the affirmative. After the government
reviewed the evidence in support of the offense charged, Cabbagestalk affirmed that he
possessed a Bryco .38 caliber pistol, but he denied that he had discharged the firearm.
The District Judge accepted Cabbagestalk’s plea and directed that a pre-sentence report
(“PSR”) be prepared.
The PSR indicated that Cabbagestalk discharged the weapon in the direction of a
residence, causing a witness “to dive for cover . . . .” In addition, the PSR represented
that two other witnesses claimed that Cabbagestalk had fired at them. In light of that
conduct, the PSR adjusted the base offense level of 20 under United States Sentencing
Guideline (“U.S.S.G.”) § 2K2.1 upward by four levels for the specific offense
characteristic of using the firearm in connection with another felony, namely, aggravated
assault. The adjusted offense level of 24 was reduced by three points for Cabbagestalk’s
acceptance of responsibility, yielding a total offense level of 21. Because
2
Cabbagestalk’s criminal history category was IV, the resulting sentencing guideline
range was 57 to 71 months. Without the four level adjustment, Cabbagestalk’s
sentencing range would have been 37 to 46 months.
Prior to sentencing, Cabbagestalk objected to the four level adjustment pursuant
to U.S.S.G. § 2K2.1(b)(5). He argued that whether he had discharged the firearm was a
fact that had to be proven beyond a reasonable doubt in accordance with Blakely v.
Washington, 542 U.S. 296 (2004). As additional support for his position, Cabbagestalk
attached the respondent’s brief from the pending appeal before the Supreme Court in
United States v. Fanfan. See United States v. Booker, 543 U.S. 220 (2005) (resolving
the writs of certiorari filed by Booker and Fanfan). The government argued that
Cabbagestalk’s position lacked merit.
On January 12, 2005, the Supreme Court issued its decision in United States v.
Booker, 543 U.S. 220 (2005). Two weeks later, the District Court conducted
Cabbagestalk’s sentencing hearing. Cabbagestalk asserted that the District Court’s
findings at sentencing had to be proven beyond a reasonable doubt. He renewed his
objection to the four level adjustment under U.S.S.G. § 2K2.1(b)(5) and urged the
District Court to impose a sentence at the lower end of his guideline range. When
neither party offered additional evidence, the District Court adopted the findings of the
PSR. After affording Cabbagestalk his right of allocution, the District Court cited
Booker and declared that the “advisory guidelines do not reach the proper sentence . . . .”
3
As support for its conclusion, the District Court explained that the
suggested guideline sentence range does not sufficiently reflect the
seriousness of the defendant’s offense, nor would a sentence within that
range sufficiently promote respect for the law, provide just punishment for
the offense, or afford adequate deterrence to criminal conduct, or protect
the public from further crimes by this defendant.
The defendant did not merely possess a firearm, but actually
engaged in the drive-by shooting, whereby, he fired the gun at three
persons from his car on November 2, 2003. Therefore, the real conduct in
this case is much more serious than the mere possession of a firearm by a
convicted felon and is not adequately addressed by the relative [sic] minor
four-level adjustment under Section 2K2.1(b)(5) of the guidelines.
The District Court further explained that the sentence was “necessary to reflect the
seriousness of the real conduct underlying this offense and to provide just punishment
for the offense.” In addition, the Court noted that the defendant had a “history of
violence, culminating in the present offense, both as a juvenile and as an adult,” as well
as a history of unlawfully using weapons. Instead of imposing a sentence within the
guideline range of 57 to 71 months, the District Court imposed a sentence of 120
months, i.e., the statutory maximum of ten years. See 18 U.S.C. § 922(g)(1) and
924(a)(2). This timely appeal followed.1
Cabbagestalk argues that the District Court erred in several respects: (1) by failing
to provide him with notice of its intent to depart upward from the advisory Sentencing
Guideline range as required by Burns v. United States, 501 U.S. 129 (1991), and Federal
1
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See also United
States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).
4
Rule of Criminal Procedure 32; (2) in not applying the reasonable doubt standard to the
findings of fact that it used to increase his sentence beyond the advisory guideline range;
(3) by imposing, based upon a development in the law after the commission of his
offense and in violation of the Due Process Clause, a sentence greater than the
mandatory sentencing guideline range in effect at the time he committed the offense
charged; (4) by relying, despite the instruction provided by the Supreme Court in
Crawford v. Washington, 541 U.S. 36 (2004), at sentencing on information contained in
the PSR even though the witnesses were not cross-examined; and (5) by imposing an
unreasonable sentence contrary to Booker.
The government concedes that the District Court erred by not providing
Cabbagestalk with the required notice of its intent to depart and “urges [us] to exercise
[our] supervisory authority to direct the district courts to give the parties notice and an
opportunity to respond when considering a variance from the advisory sentencing
guideline range.” It contends, however, that we need not remand because the error was
harmless inasmuch as Cabbagestalk has not demonstrated that “he would have done
things differently had notice been given.” United States v. Himler, 355 F.3d 735, 742
(3d Cir. 2004). In light of the government’s concession, we need not determine whether
a district court is legally required to provide notice that it intends to depart above the
advisory guideline range on an unidentified ground. Because Cabbagestalk’s counsel
has explained that he would have conducted additional factual investigation and prepared
5
additional legal argument on the method to be employed in departing upward, we
conclude that the error is not harmless. For that reason, we will vacate the District
Court’s judgment and remand this matter for resentencing.
Because we will vacate the District Court’s judgment, we need not address the
reasonableness of the District Court’s sentence. Based on the Supreme Court’s
instruction in Booker, we reject Cabbagestalk’s argument that the reasonable doubt
standard must be applied to the facts considered by a sentencing judge.
In Booker, Justice Breyer determined that the remedy for the Sixth Amendment
violation was to excise the two provisions of the Sentencing Reform Act of 1984, as
amended, that made the guidelines mandatory. 543 U.S. at 245. He explained at length
why the Sixth Amendment reasonable doubt requirement was not being superimposed
onto the sentencing statutes. 543 U.S. at 247-58. Indeed, in Justice Stevens’ opinion in
Booker, he acknowledged that if the guidelines were advisory instead of mandatory,
then “their use would not implicate the Sixth Amendment,” and he confirmed that “when
a trial judge exercises his discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts that the judge deems
relevant.” Booker, 543 U.S. at 233.
Consistent with this instruction, we declared in United States v. Cooper, 437 F.3d
324, 330 (3d Cir. 2006), that “[a]s before Booker, the standard of proof under the
guidelines for sentencing facts continues to be preponderance of the evidence.”
6
Accordingly, the District Judge did not err by failing to determine the applicable
sentencing factors beyond a reasonable doubt.
Cabbagestalk also argues, for the first time, that the Sixth Amendment does not
allow the government to prove its case with testimonial witness statements that were not
subject to cross-examination. Appellant’s Br. at 24 (citing Crawford v. Washington, 541
U.S. 36 (2004)). Assuming that Cabbagestalk’s single paragraph was sufficient to raise
this issue for review, we review for plain error. Fed. R. Crim. P. 52(b). We find no
error, plain or otherwise.
In United States v. McGlory, 968 F.2d 309, 347 (3d Cir. 1992), we declared that
the “Sixth Amendment’s confrontation clause does not apply to sentencing hearings and
reliable hearsay is generally admissible.” Id. (citing United States v. Kikumura, 918 F.2d
1084, 1099-1100 (3d Cir. 1990)). The Supreme Court’s decision in Crawford did not
erode this principle because Crawford concerned only the use of uncross-examined
testimony at trial. 541 U.S. at 42. Crawford’s sentence was not at issue.
Because Crawford concerned only trial testimony, we reject Cabbagestalk’s
invitation to extend Crawford and apply it to sentencing hearings. We cannot ignore the
Supreme Court’s decision in Williams v. New York, 337 U.S. 241 (1949), which held that
the consideration of information supplied by witnesses at sentencing who were not
subject to cross examination did not violate the Due Process Clause. Id. We note that
none of our sister Courts of Appeals that have addressed the issue have been willing to
7
expand Crawford’s reach either. See United States v. Chau, 426 F.3d 1318, 1323 (11th
Cir. 2005) (refusing to apply Crawford to sentencing hearing); United States v. Luciano,
414 F.3d 174, 179 (1st Cir. 2005) (pointing out that Crawford concerned hearsay at trial
and that it would not alter its conclusion that “there is no Sixth Amendment
Confrontation Clause right at sentencing”); United States v. Roche, 415 F.3d 614, 618
(7th Cir. 2005), cert. denied, 126 S. Ct. 671 (2005) (explaining that the “relevant
provision at sentencing is the due process clause, not the confrontation clause” because
witnesses at sentencing are not accusers); United States v. Martinez, 413 F.3d 239, 243
(2nd Cir. 2005) (rejecting defendant’s invitation to reconsider the applicability of the
Confrontation Clause in light of Crawford).
Finally, we consider Cabbagestalk’s contention that his due process rights under
the Fifth Amendment were violated by the retroactive application of the Supreme
Court’s decision in Booker, which exposed him to punishment under the statutory
maximum of ten years instead of the lower guideline range applicable under a mandatory
sentencing scheme. In Rogers v. Tennessee, 532 U.S. 451 (2001), the Supreme Court
considered the constitutionality of the retroactive application of a judicial decision which
permitted the defendant to be charged with murder. The Court recognized that the Ex
Post Facto Clause did not govern the issue because it applied only to legislative acts.
Nonetheless, it reiterated that the limitations of that Clause “are inherent in the notion of
due process.” Id. at 456. As a result, the constitutionality of the retroactive application
8
of a judicial decision rests “on core due process concepts of notice, foreseeability, and in
particular, the right to fair warning . . . .” Id. at 459. A judicial decision “violates the
principle of fair warning, and hence must not be given retroactive effect, only where it is
unexpected and indefensible by reference to the law which had been expressed prior to
the conduct in issue.” Id. at 462 (internal quotation marks and citation omitted).
In United States v. Pennavaria, __F.3d __, 2006 WL1061956 (3d Cir. 2006), we
applied Rogers’ principles to a similar challenge by a defendant who opposed a remand
for resentencing under Booker. Pennavaria argued that retroactive application of Booker
would expose him to a maximum statutory sentence of twenty years per count, as
opposed to a mandatory guideline sentence of forty-six months. We explained that
Pennavaria’s ex post facto argument fails for two reasons. First, the
Supreme Court in Booker clearly instructed that both of its holdings should
be applied to all cases on direct review. Second, Pennavaria had fair
warning that participating in a money laundering conspiracy and engaging
in substantive money laundering was punishable by a prison term of up to
20 years under 18 U.S. C. § 1956(a). Pennavaria also had fair warning that
his sentence could be enhanced based on judge-found facts as long as the
sentence did not exceed the statutory maximum. For these reasons, we join
the other Courts of Appeals . . . and hold that application of Booker’s
remedial holding to cases pending on direct review does not violate the ex
post facto principle of the Due Process Clause.
Id. at __, 2006 WL 1061956 at *4 (citation omitted). Because Pennavaria governs
Cabbagestalk’s ex post facto claim, it too fails.
For the reasons set forth above, we will affirm Cabbagestalk’s conviction, we will
vacate his sentence, and we will remand for resentencing so that defense counsel has an
9
opportunity to prepare in light of the District Court’s intent to depart upward beyond the
advisory guideline range.