446 F.3d 1340 (11th Cir. 2006), 04-15750, United States v. Underwood

Docket Nº:04-15750.
Citation:446 F.3d 1340
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Darin UNDERWOOD, a.k.a. Buck, Defendant-Appellant.
Case Date:April 25, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1340

446 F.3d 1340 (11th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Darin UNDERWOOD, a.k.a. Buck, Defendant-Appellant.

No. 04-15750.

United States Court of Appeals, Eleventh Circuit.

April 25, 2006

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[Copyrighted Material Omitted]

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        Craig L. Crawford (Fed. Pub. Def.), Orlando, FL, Dionja L. Dyer (Fed. Pub. Def.), Tampa, FL, for Underwood.

        Susan Hollis Rothstein-Youakim, Tampa, FL, for U.S.

        Appeal from the United States District Cour for the Middle District of Florida D. C. Docket No. 04-00165-CR-T-24-MSS

        Before EDMONDSON, Chief Judge, ANDERSON and FAY, Circuit Judges.

        ANDERSON, Circuit Judge

        The defendant, Darin Underwood ("Underwood"), appeals his 135-month sentence for possession with intent to distribute 50 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Underwood argues that 21 U.S.C. § 841 is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), his sentence must be vacated and remanded because the district court committed plain error by sentencing him under a mandatory United States Sentencing Guidelines ("Guidelines") scheme. Additionally, Underwood argues that conversations his brother Darryl had with a confidential informant, offered at trial as statements of a co-conspirator, constituted inadmissible hearsay, the admission of which violated the Confrontation Clause of the Sixth Amendment and the requirements of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

        After considering each of the defendant's arguments, we affirm his conviction and 135-month sentence.

        I. FACTUAL AND PROCEDURAL HISTORY

        In November of 2002, the Drug Enforcement Administration ("DEA") began investigating Underwood and his brother Darryl ("Darryl") for drug trafficking. As part of its investigation, the DEA used a confidential informant named Victoria Hopps ("Hopps"). On November 4th, Hopps contacted Darryl by phone, and later in person, and asked to buy three ounces of cocaine base. Darryl replied that he "didn't know nothing about all that" but that his brother, the defendant, would know everything that Hopps was asking about. Darryl directed Hopps to a location where she could find Underwood. During their face-to-face meeting, Underwood promised that he would get some cocaine to sell to Hopps.

        On November 12, 2002, Underwood contacted Hopps about the cocaine, saying he had acquired some and was ready to sell. On the 15th, Darryl drove Underwood to the location of a pre-arranged meeting and dropped him off. At the meeting, Hopps purchased 51.2 grams of cocaine base from Underwood. While the transaction was occurring, law enforcement agents conducting surveillance observed Darryl parked in his car nearby. After the sale had been made, Underwood returned to Darryl's car for a moment, and then Darryl drove off.

        On November 18, 2002, Hopps was unable to reach Underwood directly, and instead contacted Darryl to arrange another meeting to purchase drugs. Later that day, Hopps met with Underwood and purchased 80.3 grams of cocaine base. After that transaction was completed, Underwood

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was driven away by Darryl in Darryl's car.

        On January 13, 2003, Hopps met with Underwood for the last time, inquiring once again about purchasing cocaine base. Underwood explained that there were problems with another deal in which he was involved and he would likely not be able to supply any more cocaine. Hopps later met with Darryl, who corroborated Underwood's earlier statement that he would no longer be able to provide cocaine. In April of 2004, the DEA arrested Underwood. He was indicted on two counts of distributing, and possessing with intent to distribute 50 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). At trial the jury found the defendant guilty of both counts, and he was sentenced to 135 months in prison.

        II. DISCUSSION

        A. Booker Error.

        On appeal, Underwood argues for the first time that, in light of Booker, the Guidelines are unconstitutional and his case should be vacated and remanded because the district court applied the Guidelines in a mandatory fashion. When a defendant fails to raise an objection in the district court on the basis of Booker, we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, --- U.S. ----, 125 S.Ct. 2935, 162 L.Ed.2d 866 Under plain error review, there must be (1) an error, (2) that is plain, and (3) affects the defendant's substantial rights. Id. When these three factors are met, we may then exercise our discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id.

        On appeal, Underwood maintains that he has met all four prongs under plain error review. First, he argues that the district court erred by sentencing him under the mandatory Guidelines system and that the error was plain at the time of appellate consideration. Next, he claims that because the court sentenced him to the lowest possible sentence under the Guidelines, there is an indication that, had the court sentenced Underwood through an advisory Guidelines scheme, his sentence would have been different. Finally, Underwood argues that under an advisory scheme, the court would have been able to consider the mitigating factors set forth in 18 U.S.C. § 3553, which might have resulted in him receiving a lesser sentence.

        Both Underwood and the government correctly concede that the first and second prongs of the plain error test are easily satisfied. The district court erred when it sentenced Underwood because it considered the Guidelines to be mandatory, and even though the error was not plain at the time of sentencing, the subsequent issuance of Booker establishes that the error is plain at the time of appellate consideration. See United States v. Shelton, 400 F.3d 1325, 1331 (11thCir. 2005); Rodriguez, 398 F.3d at 1299. See also Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ("[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal–it is enough that the error be 'plain' at the time of appellate consideration."). The question is whether the court's error affected Underwood's substantial rights.

        In applying the third prong of the plain error test, the burden is on Underwood to demonstrate that the plain error "affects [his] substantial rights." Rodriguez, 398 F.3d at 1300. We must ask "whether there is a reasonable probability of a different result if the guidelines had been applied in an advisory instead of binding

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fashion by the sentencing judge in this case." Id. at 1301. As we explained in Rodriguez, however:

[W]here the effect of an error on the result in the district court is uncertain or indeterminate–where we would have to speculate–the appellant has not met his burden of showing a reasonable...

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