United States v. Thomas Whitmore

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50310
Plaintiff-Appellee,
D.C. No.
v. 2:90-cr-00652-SVW-1
THOMAS CLIFFORD WHITMORE,
AKA Li Tommy, AKA Tommy Young, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 4, 2016
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.
Thomas Whitmore appeals his sentence to life in prison without the
possibility of parole for his role in a series of drug-trafficking offenses. We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for further
proceedings consistent with our decision, including resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
I.
In 1991, a jury convicted Whitmore of sixteen drug-trafficking counts. As
required by the then-applicable, quantity-based sentencing statute for crack cocaine
offenses, the district court sentenced Whitmore to life in prison without the
possibility of parole on his conviction for a continuing criminal enterprise (CCE)
in violation of 21 U.S.C. § 848(b). Whitmore was twenty-six years old at the time
and had two prior, non-violent misdemeanor convictions.
In 1994, we affirmed “all but Whitmore’s conviction on count 37” and
ordered “count 1 be vacated if Whitmore’s convictions on both counts 1 and 44
withstand appellate and collateral challenge.” United States v. Miller, 24 F.3d 251,
at *1, 7 (9th Cir. 1994) (unpublished).1 On remand, the district court ordered count
37 vacated and determined that resentencing was not required at that time,
apparently with Whitmore’s agreement. In 1998, the district court granted in part
and denied in part Whitmore’s 28 U.S.C. § 2255 collateral attack. The court
ordered count 1 vacated but stated that resentencing was not required in light of the
mandatory life sentence for the CCE offense. However, it was not until 2014, after
Whitmore filed numerous motions and sought a writ of mandamus from this court,
1
Count 1 is for conspiracy to distribute cocaine, count 44 is for CCE,
and count 37 is for attempt to distribute cocaine.
2
that the district court actually amended Whitmore’s judgment of conviction to
reflect count 1’s vacatur. And it was not until July 9, 2015, after this appeal was
taken, that the district court amended the judgment of conviction to vacate count
37.2
II.
We agree with Whitmore and the government that this court has jurisdiction
under 28 U.S.C. § 1291 and that Whitmore’s appeal is timely. On June 19, 2014,
Whitmore filed a notice of appeal from the district court’s June 6, 2014 order.
While the district court did not enter an amended judgment of conviction in
accordance with that order until July 8, 2014, and thus his conviction did not
become final until that time, Whitmore’s appeal is timely under Fed. R. App. P.
4(b)(2). See, e.g., Solis v. Cty. of Los Angeles, 514 F.3d 946, 951 (9th Cir. 2008).
III.
Whitmore argues that the district court erred by not holding a resentencing
hearing on remand and affording him his rights to counsel and to be heard.
Our partial affirmance in 1994 unbundled Whitmore’s sentencing package
and authorized the district court to resentence him on remand. United States v.
2
The July 9, 2015 amended judgment is the subject of a second appeal,
No. 15-50318, which has been stayed pending a decision here.
3
Avila-Anguiano, 609 F.3d 1046, 1049 (9th Cir. 2010). Given the unusual
circumstances presented, Whitmore’s judgment and conviction did not become
final and appealable on remand until 2014, when the district court finally entered
an amended judgment of conviction. United States v. LaFromboise, 427 F.3d 680,
686 (9th Cir. 2005); United States v. Colvin, 204 F.3d 1221, 1224–25 (9th Cir.
2000). By that time, Whitmore was no longer represented by counsel and the lack
of an opportunity to allocute prejudiced him because the district court “could have
lowered” his sentence. See United States v. Gunning, 401 F.3d 1145, 1149 (9th
Cir. 2005); see also Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (explaining that
new rules for the conduct of criminal prosecutions apply retroactively to all cases
“not yet final”).
The government argues that Whitmore waived any right to resentencing
because an attorney for one of Whitmore’s co-defendants who stood in for
Whitmore’s counsel at a 1994 hearing agreed that resentencing was not required at
that time. However, on the record presented, we cannot conclude that Whitmore
knowingly and voluntarily waived any argument that resentencing was required in
1998 or later.
Whitmore presents two additional arguments on appeal. First, he argues that
the jury’s verdict on the drug-quantity threshold was invalid because (1) the court
4
erroneously aggregated the drug quantities involved in multiple offenses; (2) there
was insufficient evidence to support a finding that any single violation involved the
requisite drug quantity; and (3) the jury did not itself find the drug quantities as
required by Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, he argues that
the Double Jeopardy Clause requires vacatur of his three attempt convictions that
were predicates for his CCE conviction. United States v. Housley, 907 F.2d 920,
922 (9th Cir. 1990) (ruling that district courts cannot impose cumulative
punishments for both attempt and CCE offenses unless the offenses are distinct).
While Whitmore’s arguments under Apprendi and Housley may have merit, the
government contends that Whitmore waived them by not raising them on direct
appeal. We leave it to the district court to consider in the first instance whether to
exercise its discretion to consider these arguments.
IV.
Accordingly, we vacate Whitmore’s sentence and remand for the district
court to resentence Whitmore in accordance with now-applicable law. On remand,
the district court shall provide Whitmore with his rights to counsel and to allocute,
and the district court shall decide whether to consider the arguments that Whitmore
did not make on his first direct appeal. Additionally, the district court should
5
amend the judgment of conviction to vacate count 37.3
VACATED and REMANDED.
3
Whitmore’s timely appeal from the July 8, 2014 amended judgment of
conviction divested the district court of jurisdiction to enter the July 9, 2015
judgment of conviction, which vacated count 37. Small v. Operative Plasterers’
and Cement Masons’ Int’l. Ass’n., 611 F.3d 483, 495 (9th Cir. 2010).
6