United States v. Padgett

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4638
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONELL DONTE PADGETT,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 04-6041)
Submitted: October 11, 2006 Decided: November 8, 2006
Before WIDENER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH, MOORE,
KERSEY & STAFFORD, PLLC, Charleston, West Virginia, for Appellant.
Kasey Warner, United States Attorney, R. Gregory McVey, Assistant
United States Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This case is before the court on remand from the United
States Supreme Court. We previously affirmed Donell Donte
Padgett’s conviction and sentence. United States v. Padgett, No.
03-4638 (4th Cir. May 26, 2004) (unpublished). The Supreme Court
vacated our judgment and remanded the case to us for further
consideration in light of United States v. Booker, 543 U.S. 220(2005).1 After reviewing Padgett’s sentence as instructed, we
affirm.
A jury convicted Padgett of conspiracy to possess with
intent to distribute more than five grams of crack cocaine, two
counts of distribution of an unspecified quantity of crack cocaine,
and aiding and abetting the distribution of an unspecified quantity
of crack cocaine. At sentencing, the district court held Padgett
responsible for the marijuana equivalencies of $2400 in cash found
on Padgett’s person at the time of his arrest and 33.89 grams of
crack, representing the amount of crack involved in controlled buys
and seized from Padgett’s home. The court assigned a base offense
level of 28, see U.S. Sentencing Guidelines Manual § 2D1.1, and
increased this by two levels for possession of firearms, see USSG
§ 2D1.1(b), for a total offense level of 30. Padgett’s criminal
1
By implication, the Supreme Court’s order leaves intact that
part of our decision affirming the conviction.
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history category was II, and his resulting guideline range was 108-
135 months. He was sentenced to 108 months in prison.
In Padgett’s supplemental brief, filed at our direction
after the Supreme Court’s remand, Padgett contends that he is
entitled to resentencing in light of Booker because his sentence
was enhanced based on facts not found by the jury. Specifically,
he complains that his base offense level and the firearm
enhancement were determined based on facts found by the district
court instead of by the jury.
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. United States v. Hughes, 401
F.3d 540, 552 (4th Cir. 2005).2 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. Booker, 543 U.S. at 244-45. Because Padgett did not
raise a Sixth Amendment challenge in the district court, our review
is for plain error. See Hughes, 401 F.3d at 547. To demonstrate
plain error, an appellant must establish that an error occurred,
that it was plain, and that it affected his substantial rights.
2
Padgett does not complain on appeal about the district
court’s treatment of the guidelines as mandatory. Had he so
complained, we would have found no merit to this claim because
Padgett failed to present any non-speculative evidence that he
would have received a lower sentence had the guidelines been
treated as advisory. See United States v. White, 405 F.3d 208, 215
(4th Cir. 2005).
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See United States v. Olano, 507 U.S. 725, 731-32 (1993); Hughes,
401 F.3d at 547-48. If an appellant meets these requirements, 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.”
Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted).
Other than the conviction on Count One, which charged
Padgett with possession with intent to distribute more than five
grams of cocaine base, the jury made no findings as to the weight
of drugs for which Padgett was responsible. Based on the
conviction on Count One alone, Padgett’s offense level would have
been 26, and his guideline range would have been 70-87 months. His
guideline range calculated based on judge-found facts (weight of
drugs and possession of firearms) was 108-135 months. Padgett was
sentenced to 108 months in prison, well above the maximum of the
range established based on jury findings. Therefore, the district
court’s findings as to weight of drugs and possession of firearms
constitute plain Sixth Amendment error under Hughes. We decline to
recognize the error, however, because, as demonstrated in our
earlier opinion, evidence of both drug quantity and firearm
possession was “overwhelming and uncontroverted.” See United
States v. Cotton, 535 U.S. 625, 633 (2002); United States v. Smith,
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441 F.3d 254, 272 (4th Cir. 2006) (“Even though the Sixth Amendment
required that the jury, rather than the trial judge, make the drug
quantity findings that increased [the defendant’s] sentence, the
evidence concerning drug quantity was overwhelming and
uncontroverted.”). We adhere to our earlier conclusion that guns
and drugs discovered at a residence were appropriately treated as
relevant conduct because of Padgett’s significant ties to that
residence.
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not significantly
aid the decisional process.
AFFIRMED
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