United States v. Burke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 2, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60973
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT D. BURKE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
Before GARWOOD, SMITH, and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Robert D. Burke was convicted pursuant to
a guilty plea of attempt to commit extortion under color of
official right contrary to 18 U.S.C. §§ 1951–52. Burke challenges
his 96-month sentence. We affirm.
FACTS AND PROCEEDINGS BELOW
Robert Burke, an Alderman for Holly Springs, Mississippi, was
indicted for one count of conspiracy to aid in the distribution of
more than five kilograms of cocaine, and five counts of attempt to
commit extortion under the color of official right. Burke pleaded
guilty to a single count of extortion (count two) under a plea
agreement providing that the court would not sentence Burke to more
than ten years’ imprisonment and that the remaining counts would be
dismissed.
At Burke’s plea colloquy, the prosecutor read nine paragraphs
into the record to establish a factual basis for the plea. These
nine paragraphs described a reverse-sting operation in which, on
five separate occasions, Burke and his co-conspirators were paid
money to provide a police escort for what they believed were
shipments of 50 to 100 kilograms of cocaine. In fact, only a
single 1 kilogram bag in each shipment contained real cocaine. The
rest of the purported cocaine in these five shipments was fake.
This account was far more information than necessary to
support Burke’s guilty plea to extortion. However, after the
prosecutor read these facts into the record, the court asked Burke,
“[i]s there anything he said that you would disagree with?” Burke
responded “No, sir, Your Honor.”
The pre-sentence report (PSR) assessed a base level of 10
pursuant to U.S.S.G. §§ 1x1.2, 2C1.1(a)(2003). Two levels were
added pursuant to U.S.S.G. § 1C1.1(b)(1) because the offense
involved more than one bribe or extortion. The PSR then added 8
levels pursuant to U.S.S.G. § 2C1.1(2)(B) because the offense
involved a public official. These adjustments produced an offense
2
level of 20.
But, U.S.S.G. § 2C1.1, the sentencing guideline for extortion
under color of official right, cross-references different sections
of the guidelines that should instead apply if the resulting
offense level would be higher than the level determined under
section 2C1.1 itself. One of these cross-references advises: “If
the offense was committed for the purpose of facilitating the
commission of another criminal offense, apply the offense guideline
applicable to a conspiracy to commit that other offense . . . .”
U.S.S.G. § 2C1.1(c)(1).
Burke had already admitted, during his plea colloquy, that the
extortion was committed for the purpose of facilitating the
commission of another criminal offense: aiding in the distribution
of cocaine. So, as the PSR recommended, the sentencing court
applied the section 2C1.1(c)(1) cross reference and, instead of the
20 levels calculated under section 2C1.1, the court assessed 38
levels for conspiracy to aid in the distribution of 500 kg of
cocaine.1 After a few more adjustments, including a section 3B1.3
two-level increase for abuse of public trust, Burke was sentenced
based on an offense level of 35 and a criminal history category of
1
Burke, by his agreement to the prosecutor’s statement of
the evidence at the Rule 11 hearing, admitted that he had agreed
to escort what he believed to be 350 kg of cocaine. The PSR used
the figure 500 kg, to which Burke objected to below. But, as
Burke admitted in his objection, the difference is immaterial
because the sentencing guidelines do not address cocaine-quantity
ranges above 150 kg.
3
I. This resulted in a guidelines imprisonment range of 168-210
months. However, after calculating Burke’s sentence under the
guidelines, the court accepted, under Rule 11(c)(1)(C), the plea-
agreement sentencing cap of ten years, granted the government’s
section 5K1.1 motion for downward departure, and sentenced Burke to
96 months with 2 years supervised release. Burke raises four
issues on appeal. We discuss each in turn.
DISCUSSION
I. Sentencing Based on Fake Cocaine
Burke argues that the sentencing court erred in considering
fake cocaine in its drug quantity calculation. As a result, he
contends that his sentence should be based on conspiracy to aid
in the distribution of 1 kilogram of real cocaine, not 150 or
more kilograms of mostly fake cocaine.
A. Standard of Review
The question presented here is, with respect to the crime of
conspiracy to aid in the distribution of drugs, whether the
sentencing court should include fake drugs in its drug quantity
calculation. This is a legal question as to the interpretation
and application of the sentencing guidelines which we review de
novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005).
B. Conspiracy and Fake Drugs
A defendant may not be convicted of the possession or sale
4
of drugs unless the defendant possesses or sells actual drugs.
See United States v. Bobo, 586 F.2d 355, 371 (5th Cir. 1978),
cert. denied, 99 S. Ct. 1546 (1979). However, factual
impossibility does not preclude a conviction for conspiracy or
attempt. See United States v. Pietri, 683 F.2d 877, 879 (5th
Cir. 1982). Because the act of conspiracy is complete upon the
formation of an illegal agreement, a defendant can be convicted
of conspiracy to aid in the distribution of drugs even if those
drugs are fake. Id. (“The fact that the cocaine which they
thought they were receiving was a fake substance does not affect
their intent to obtain the genuine article.”). See also United
States v. Murray, 527 F.2d 401, 411–12 (5th Cir. 1976) (upholding
a conviction for conspiracy to distribute heroin even though it
turned out to be lactose).
The question raised in Burke’s objection is whether it
follows that because a defendant can be convicted of conspiracy
to distribute fake drugs, then a defendant’s sentence for a drug
conspiracy may be based on a quantity of fake drugs. We hold
that a sentence for drug conspiracy may be based on fake drugs.
We are guided in this respect by the commentary to U.S.S.G. §
2D1.1. That commentary explains that where the drug offense
involves an agreement to buy or sell, “the agreed-upon quantity
of the controlled substance shall be used to determine the
5
offense level.”2 U.S.S.G. § 2D1.1, Commentary, Application Note
12. Thus, for inchoate offenses, the quantity of drugs is based,
not on the amount actually delivered, but on the amount agreed
upon. United States v. Lombardi, 138 F.3d 559, 562 (5th Cir.
1998). See also United States v. Dallas, 229 F.3d 105, 108–10
(2d Cir. 2000). Indeed, in convictions based on reverse-sting
operations such as this one, where the actual quantity of drugs
is controlled by the government instead of by the defendant, the
quantity of drugs agreed upon more accurately reflects the scale
of the offense than the quantity actually delivered. U.S.S.G. §
2D1.1 Commentary, Application Note 12.
Accordingly, Burke’s sentence for drug conspiracy is
properly based upon the amount he agreed to escort. His crime
was complete when he agreed to aid in the distribution of 350
kilograms of cocaine with the intent to achieve that objective.
II. Quantities That Were Part of the Dismissed Counts
Even if fake cocaine is properly included in the drug
quantity calculation, Burke argues that the sentencing court
erred in considering the entire 350 kilograms of cocaine, real
and fake, admitted to during the plea colloquy. Instead, Burke
argues, the district court should have considered only the 50
kilograms involved in count two, the count to which Burke pleaded
guilty.
2
There are exceptions that do not apply here.
6
A. Standard of Review
The question of whether the sentencing court is limited to
the quantity of drugs that provided the factual basis for
conviction is a legal question concerning the interpretation and
application of the sentencing guidelines that we review de novo.
Villegas, 404 F.3d at 359. Because Burke objected to the PSR’s
consideration of the entire 350 kilograms of cocaine, our de novo
review of the record is for harmless error. United States v.
Ahmed, 324 F.3d 368, 374 (5th Cir. 2003).3
B. Harmless Error
Rule 52(a) of the Federal Rules of Criminal Procedure
provides that “[a]ny error . . . that does not affect substantial
rights must be disregarded.” Fed.R.Crim.P. 52(a). Thus, an
error in the application of the sentencing guidelines can be
disregarded as harmless if it “did not affect the district
court’s selection of the sentence imposed.” Ahmed, 324 F.3d at
374. It is the proponent of the sentence, here the government,
that bears the burden to “persuade[] the court of appeals that
the district court would have imposed the same sentence absent
3
There is no preserved constitutional error. Burke did not
object to his sentence on Sixth Amendment grounds, although, as
we address later, he now argues Booker on appeal. Moreover, in
his brief on appeal, Burke does not challenge either his
conviction or sentence on Fifth Amendment grounds; he argues only
that the guidelines were misapplied.
7
the erroneous factor.” United States v. Tello, 9 F.3d 1119, 1129
(5th Cir. 1993)(quoting Williams v. United States, 503 U.S. 193,
203 (1992)).4
We conclude that the government has met that burden. At the
Rule 11 hearing, Burke did not dispute that “[o]n July 6, 2001,
as described in count two, Mr. Burke and others provided
protection by providing an escort for a shipment of what was
purported to be 50 kilograms of cocaine.” Thus, Burke has
conceded that at least 50 kilograms of cocaine are relevant to
his guilty plea.
A reduction in the quantity of cocaine from 350 kg to 50 kg
would not have affected Burke’s sentence, because either quantity
yields a sentence much longer than the ten-year cap. That is,
350 kilograms of cocaine results in an offense level of 35,
yielding a range of 168–210 months; 50 kilograms results in an
offense level of 33, yielding a range of 135–168 months. See
U.S.S.G. § 2D1.1(c). The bottom of either range substantially
exceeds both the 120 month agreed sentence cap and Burke’s
ultimate sentence of 96 months.
This is not simply a case where the same sentence is
4
We understand this to be the proper standard for review of
non-constitutional sentencing errors. However, we recognize that
in what may be a similar circumstance a prior panel of this court
did apply, without citation, the “beyond a reasonable doubt”
standard. United States v. Lopez-Urbina, __ F.3d __ (5th Cir.
2005) (2005 WL 1940118 at *11).
8
included in both the incorrect and the correct sentencing ranges.
See e.g., United States v. Lopez-Urbina, __F.3d__ (5th Cir.
2005). In such cases, it is more difficult for the government to
bear its burden of proving that “the district court would have
imposed the same sentence absent the erroneous factor.” United
States v. Tello, 9 F.3d 1119, 1131 (5th Cir. 1993). Instead, in
this case any alleged errors are moot because the defendant’s
sentence was determined entirely by only two independent factors:
(1) The ten-year sentencing cap and (2) the downward departure
for substantial assistance to authorities under section 5K1.1.
Neither of these two factors is influenced by the quantity
of drugs (50 or 350 kg). The ten-year cap, if accepted by the
court, functions without regard to drug quantity or to the
severity of the sentence previously calculated. Furthermore,
with respect to section 5K1.1, neither the considerations listed,
nor the policy statement provided, suggest that the severity of
the crime——here determined by the quantity of drugs——should
influence the amount of the substantial-assistance reduction.5
C. Quantities of Cocaine
5
The substantial assistance to authorities departure
guideline provides a non-exhaustive list of factors that a
sentencing court should consider when applying 5K1.1. These
factors are: (1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance; (2) the truthfulness of
information provided by the defendant; (2) the nature and extent
of the defendant’s assistance; (4) any injury suffered, or any
danger faced by the defendant; (5) the timeliness of the
defendant’s assistance. U.S.S.G. § 5K1.1.
9
In any event, even if the consideration for sentencing
purposes of more cocaine than the 50 kilograms involved in count
two cannot be considered harmless, Burke would still lose. The
sentencing guidelines provide that “[t]ypes and quantities of
drugs not specified in the count of conviction may be considered
in determining the offense level.” U.S.S.G. § 2D1.1 comment
n.12; U.S.S.G. § 1B1.3(a)(2) (relevant conduct). An applicable
comment to the guidelines gives the following example:
“For example, where the defendant engaged in three drug
sales of 10, 15, and 20 grams of cocaine, as part of the
same course of conduct or common scheme or plan, subsection
(a)(2) provides that the total quantity of cocaine involved
(45 grams) is to be used to determine the offense level even
if the defendant is convicted of a single count charging
only one of the sales.”
U.S.S.G. § 1B1.3 Commentary, Application Note 3. Following that
example, this court held that although a defendant pleaded guilty
to charge specifying only 20 lbs of marihuana, the drug quantity
at sentencing should include the actual amount involved in the
entire conspiracy. United States v. Warters, 885 F.2d 1266, 1273
(5th Cir. 1989) (“[T]he district court is not limited by the
quantity of drugs mentioned in the charging instrument.”).
Accordingly, the district court did not err by considering
the entire 350 kilograms of cocaine that Burke admitted to as
part of his drug conspiracy, even though 300 of those kilograms
were related to dismissed counts.
III. Abuse of Position of Trust
10
Burke argues that the sentencing court erred in applying a
two-level sentence enhancement for abuse of a position of trust
under U.S.S.G. § 3B1.3.
A. Standard of Review
The district court’s application of section 3B1.3 is a
sophisticated factual determination that we review for clear
error. United States v. Partida, 385 F.3d 546, 562 (5th Cir.
2004).
B. Abuse of a Position of Trust
Section 3B1.3 provides for a two-level enhancement “if the
defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or
concealment of the offense.” U.S.S.G. § 3B1.3. Burke concedes
that, as an Alderman, he occupied a position of public trust.
However, he objects to the finding that he abused his position in
a manner that significantly facilitated the commission of his
offense.
The district court ruled that Burke did abuse his position
of trust both because city aldermen appoint the chief of police,
and because Burke used his position to assist the police escort
of drugs through his city. Burke’s usefulness to the purported
drug smugglers and his financial reward for escorting the drugs
through his city, depended upon his position as alderman. The
district court did not clearly err in assessing him a two-level
increase for abuse of public trust.
11
IV. Booker Error
With respect to each of his above contentions, Burke also
argues in this court that the district court committed Booker
error by sentencing him in light of facts not directly relevant
to his guilty plea and not found by a jury.
There is no support in the guidelines or in our case law for
the argument that the court should consider only facts directly
relevant to the elements of the offense charged. In fact, as
discussed above, the guidelines explicitly advise the sentencing
court to examine all relevant conduct, including facts external
to the count of conviction.
Of course, if the court itself found those external facts,6
and they had not been admitted by Burke, he could have argued
Booker on appeal. However, because Burke admitted all the
relevant facts at his plea colloquy, he cannot rely on Booker
here. The holding of Booker is “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” United States v.
Booker, 125 S. Ct. 738, 756 (2005) (emphasis added). Burke’s
Booker argument is without merit.
6
Or, failed to find those facts beyond a reasonable doubt.
12
CONCLUSION
For the foregoing reasons, the sentence of the district court
is
AFFIRMED.
13