United States v. Taylor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICKEY TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1051)
Submitted: February 16, 2007 Decided: April 16, 2007
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Steven W. Sumner, Greenville, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Isaac L. Johnson, Jr.,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mickey Taylor appeals his conviction and 360-month
sentence imposed following his guilty plea to conspiracy to
distribute five grams or more of actual methamphetamine and more
than fifty grams of a mixture containing a detectable amount of
methamphetamine and a quantity of methylenedioxy-methamphetamine
(“MDMA”), in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000);
possession with intent to distribute a quantity of MDMA, in
violation of 21 U.S.C. § 841(a)(1); and possession with intent to
distribute five grams or more of actual methamphetamine, in
violation of 21 U.S.C. § 841(a)(1).
Taylor’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but questioning whether the district
court erred by failing to inform Taylor of the nature and
consequences of his guilty plea. In his pro se supplemental
briefs, Taylor raised numerous challenges to his sentence and
asserted that counsel was ineffective in failing to confront and
cross-examine confidential informants and in failing to appeal on
the basis of United States v. Booker, 543 U.S. 220 (2005). Because
we find that Sixth Amendment error occurred in Taylor’s sentencing,
we vacate his sentence and remand for resentencing in accordance
with Booker.
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Allegations of Rule 11 violations are reviewed for plain
error where, as here, Taylor did not move to withdraw his guilty
plea in the district court. United States v. Martinez, 277 F.3d
517, 527 (4th Cir. 2002) (stating standard of review). To
demonstrate plain error, Taylor must establish that error occurred,
that it was plain, and that it affected his substantial rights.
United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005). If
a defendant establishes the first three plain error requirements,
see id. at 547-48, the court’s “discretion is appropriately
exercised only when failure to do so would result in a miscarriage
of justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 555 (internal
quotation marks and citation omitted). Our review of the record
leads us to conclude that the district court substantially complied
with Rule 11 and Taylor is unable to establish that an error
occurred. We find that his guilty plea was knowing and voluntary.
In determining the sentencing range under the Sentencing
Guidelines,1 the probation officer grouped the counts pursuant to
USSG § 3D1.2(d). Taylor was held responsible for 1,729.4 grams of
methamphetamine and 505 pills of MDMA, which converted to a
marijuana equivalency of 3,461.3 kilograms. This drug quantity
1
U.S. Sentencing Guidelines Manual (“USSG”) (2000).
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resulted in a base offense level of thirty-four2 pursuant to USSG
§ 2D1.1(c)(3). The probation officer also recommended a four-level
enhancement for Taylor’s leadership role in the conspiracy pursuant
to USSG § 3B1.1(a), and a three-level reduction for acceptance of
responsibility pursuant to USSG § 3E1.1, for a total offense level
of thirty-five. Taylor was also determined to qualify for
sentencing as a career offender pursuant to USSG § 4B1.1, which
assigned an offense level of thirty-four. Because the offense
level based on drug quantity and role in the offense was higher
than thirty-four, that offense level applied. Taylor’s prior
criminal activity yielded a total of seventeen criminal history
points, placing him in category VI. The applicable Guidelines
range was 292 to 365 months of imprisonment.
Taylor withdrew his objections to the PSR at the
sentencing hearing, and we therefore review his sentencing
arguments for plain error. Hughes, 401 F.3d at 547. Taylor
challenges the PSR’s description of his involvement in the
conspiracy that began in January 2000 because he was incarcerated
until October 2000. He also asserts error in the quantity of drugs
attributed to him for sentencing, and the characterization of
methamphetamine as “actual” or “pure,” because laboratory analysis
2
The presentence report (PSR) contains a typographical error
in the offense level calculations, as the base offense level is
thirty-six rather than thirty-four. The error does not extend to
the calculation of Taylor’s total offense level.
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indicated the purity level of the substance did not exceed seventy-
four percent, and the Guidelines require a minimum of eighty
percent purity to characterize a substance as actual
methamphetamine. We conclude that these arguments are without
merit. Taylor does not specify any drugs attributed to him based
on transactions that were alleged to have occurred during his
incarceration, but raises this issue more as an attack on the
credibility of the statements of co-conspirators who described his
drug transactions. Because Taylor did not assert these objections
in the district court, however, there is no record beyond the PSR
for this court to consider in relation to his dispute with the drug
quantity attributed to him.
Similarly, Taylor cannot demonstrate either error or
prejudice with regard to whether the methamphetamine was “actual”
methamphetamine. First, Taylor pleaded guilty to an indictment
alleging a conspiracy and one transaction that involved “actual”
methamphetamine. He may therefore properly be held accountable for
that substance in the determination of his sentence. United
States v. Revels, 455 F.3d 448, 450 (4th Cir.), cert. denied, 127
S. Ct. 299 (2006). Moreover, the probation officer recognized that
the substances tested were not at least eighty percent purity, and
accordingly used a lower conversion ratio of one gram of
methamphetamine equals two kilograms of marijuana to convert the
methamphetamine into marijuana equivalency. The conversion ratio
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for methamphetamine “actual” in the Guidelines is one gram of
methamphetamine (actual) equals twenty kilograms of marijuana.
USSG § 2D1.1, comment. (n.10 Drug Equivalency Tables). Taylor is
not entitled to relief on this claim.
Acknowledging that his indictment charges him with actual
or pure methamphetamine, Taylor next attempts to argue that the
indictment and his plea agreement did not specify whether the drug
was d-methamphetamine or l-methamphetamine. This claims fails
because the distinction between d- and l-methamphetamine has been
eliminated from the Sentencing Guidelines, and l-methamphetamine is
now treated the same as d-methamphetamine. See USSG § 2D1.1 & App.
C at 430-33 (Amendment 518). Thus, the characterization of the
type of methamphetamine did not affect the Guidelines calculation.
Taylor was sentenced before Booker. This court has
identified two types of Booker error: a violation of the Sixth
Amendment, and a failure to treat the Sentencing Guidelines as
advisory. A Sixth Amendment error occurs when the district court
imposes a sentence greater than the maximum permitted based on
facts found by a jury or admitted by the defendant. Hughes, 401
F.3d at 546. The Government concedes that the district court erred
in imposing the four-level enhancement for Taylor’s role in the
offense, and we conclude that the enhancement of his offense level
based on drug quantity also violated the Sixth Amendment. Taylor
pleaded guilty to crimes that involved ten grams or more of actual
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methamphetamine, more than fifty grams of methamphetamine mixture,
and an unspecified quantity of MDMA. These drug quantities support
a base offense level of twenty-six. USSG § 2D1.1(c)(7). However,
because Taylor had at least two prior felony convictions of either
a crime of violence or a controlled substance offense, and was at
least eighteen years old at the time the instant offenses were
committed, he was a career offender pursuant to USSG § 4B1.1. See
United States v. Chase, 466 F.3d 310, 315-16 (4th Cir. 2006)
(rejecting challenge to career-offender status). Taylor’s offense
level based solely on his career offender status was thirty-four.
USSG § 4B1.1(b). An offense level of thirty-four and a criminal
history category of VI results in a Guidelines range of 262 to 327
months of imprisonment. USSG, Ch. 5, Pt. A, Sentencing Table.
Because Taylor’s 360-month sentence exceeds this range, the Sixth
Amendment error affects Taylor’s substantial rights. See United
States v. Evans, 416 F.3d 298, 300 n.4 (4th Cir. 2005) (holding
that to determine whether the defendant's sentence violated his or
her Sixth Amendment rights post-Booker, this court looks to the
defendant’s “guideline range based on the facts he admitted before
adjusting that range for acceptance of responsibility”).
Taylor also argues that the district court erred in
adding three points to his criminal history score based on a 1985
juvenile conviction for which he received a term of imprisonment
exceeding one year and one month. It is not necessary to determine
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whether error occurred here, as Taylor’s substantial rights were
not affected. Taylor’s criminal history points totaled seventeen;
thus, his criminal history category would have remained the same
without the inclusion of the disputed conviction. See USSG, Ch. 5,
Pt. A, Sentencing Table (criminal history category IV based on
thirteen or more points); see also USSG § 4B1.1(b) (stating that a
career offender’s criminal history category shall be category VI).
Taylor asserts that counsel was ineffective for failure
to confront and cross-examine the confidential informants (who
Taylor claimed provided perjured testimony) and for failure to
appeal on the basis of Blakely/Booker. To succeed in a claim of
ineffective assistance on direct appeal, a defendant must show
conclusively from the face of the record that counsel provided
ineffective representation. United States v. James, 337 F.3d 387,
391 (4th Cir. 2003); see also United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999) (providing standard and noting that
ineffective assistance of counsel claims generally should be raised
by motion under 28 U.S.C. § 2255 (2000)). Our review of the record
convinces us that Taylor fails to meet this standard.
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues for
appeal. We therefore affirm Taylor’s convictions. We conclude,
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however, that Taylor’s sentence violates Booker.3 Accordingly, we
vacate his sentence and remand for resentencing.4 We grant
Taylor’s motions to file supplemental pro se briefs but deny his
motion to relieve and substitute counsel. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
3
Just as we noted in Hughes,“[w]e of course offer no criticism
of the district judge, who followed the law and procedure in effect
at the time” of Taylor’s sentencing. Hughes, 401 F.3d at 545 n. 4.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
4
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.”
Booker, 543 U.S. at 264. On remand, the district court should
first determine the appropriate sentencing range under the
Guidelines, making all factual findings appropriate for that
determination. See Hughes, 401 F.3d at 546. The court should
consider this sentencing range along with the other factors
described in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and
then impose a sentence. Id. If that sentence falls outside the
Guidelines range, the court should explain its reasons as required
by 18 U.S.C. § 3553(c)(2) (2000). Id. The sentence must be
“within the statutorily prescribed range . . . and . . .
reasonable.” Id. at 546-47 (citations omitted).
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