U.S. v. Davis, No. 02-10402.

• Decision Date: 08 May 2003
• Docket Number: No. 02-11913 Non-Argument Calendar.,No. 02-10402.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jaja Zambrowski DAVIS, Morris Ramsey, a.k.a. "Fade", Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Ossie Orlando McCauley, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1250

329 F.3d 1250

UNITED STATES of America, Plaintiff-Appellee, v. Jaja Zambrowski DAVIS, Morris Ramsey, a.k.a. "Fade", Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Ossie Orlando McCauley, III, Defendant-Appellant.

No. 02-10402.

No. 02-11913 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 8, 2003.

Richard K. Keith (Court-Appointed), Keith & Hamm, PC, Thomas Martele Goggans, Montgomery, AL, for Davis and Morris.

Louis V. Franklin, Montgomery, AL, for Plaintiff-Appellee.

Jennifer Anne Hart and Christine A. Freeman, Federal Public Defenders, Montgomery, AL, for McCauley.

Appeals from the United States District Court for the Middle District of Alabama.

Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:

These appeals arise from the convictions of Appellants Jaja Zambrowski Davis, Morris Ramsey and Ossie O. McCauley, III, for various offenses. Davis was convicted of conspiring to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 846, and distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Ramsey was convicted of conspiring to distribute cocaine base and distributing cocaine base. McCauley was convicted of conspiring to distribute cocaine base, distributing cocaine base, and using and carrying a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Davis, Ramsey, and McCauley were sentenced to 480, 292, and 350 months' imprisonment, respectively. Appellants raise three issues with respect to their sentencing. First, Appellants contend the district court erred by resentencing them without affording them a new evidentiary hearing. Second, Appellants contend the district court abused its discretion by stacking their sentences to run consecutively rather than concurrently, pursuant to United States Sentencing Commission, Guidelines Manual, § 5G1.2. Third, Appellants contend the imposition of consecutive sentences violates their due process rights under the Fifth Amendment.

I.

Appellants and others participated in a large crack cocaine distribution ring in Lanett, Alabama. Following a jury trial in March, 1994, Appellants were found guilty of conspiring to distribute crack cocaine, as well as possession of varying amounts of crack cocaine. Appellants Davis, Ramsey, and McCauley were sentenced to 211, 169, and 229 months' imprisonment, respectively. Following an unsuccessful direct appeal, Appellants attacked their sentences pursuant to 28 U.S.C. § 2255. The district court granted Appellants' § 2255 applications, finding appellate counsel acted ineffectively by failing to require the district court to make individualized findings concerning the scope of the conspiracy and the amount of drugs attributable to each defendant.

On November 29, 1999, the district court held an evidentiary hearing and received new evidence to help it determine the quantity of drugs for which each defendant should be held responsible. The court resentenced Davis, Ramsey, and McCauley to life, 300 months', and life imprisonment, respectively. Appellants appealed, and this Court affirmed in part and reversed in part, noting the district court re-sentenced Appellants without the benefit of the rule announced by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

On remand, Appellants argued they were entitled to be sentenced de novo because their previous sentences had been "vacated" by this Court. The Government objected, arguing the Eleventh Circuit mandate restricted the range of issues that could be considered on remand. The district court agreed with the Government, and without the benefit of a new evidentiary hearing, sentenced Davis, Ramsey, and McCauley to 480, 292, and 350 months' imprisonment, respectively. The court interpreted U.S.S.G. § 5G1.2(d) to require that Appellants' sentences run consecutively rather than concurrently so that the appropriate guidelines range could be achieved.

II.

A. De novo sentencing

Appellants contend the district court erred by declining to sentence them de novo. They note that the district court did not afford them a new hearing at resentencing, despite our opinion vacating their sentences and upholding the district court's authority to receive new evidence at resentencing. According to Appellants, this violated the court's obligation to employ a "holistic approach" to sentencing. United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996).

We review a district court's application of the sentencing guidelines de novo. United States v. Hunerlach, 258 F.3d 1282, 1285 (11th Cir.2001). When a criminal sentence is vacated, a district court is generally free to reconstruct the sentence using any of the sentencing components. Stinson, 97 F.3d at 469. If the appellate court issues a limited mandate, however, the trial court is restricted in the range of issues it may consider on remand. United States v. Tamayo, 80 F.3d 1514, 1520 (11th Cir.1996). A vacation of judgment for consideration in light of a particular decision is "`much more limited in nature' than a general vacation by an appellate court, and its effect is `not to nullify all prior proceedings.'" Id. (quoting United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir.1992)).

In our August 8, 2001, order vacating Appellants' sentences, we remanded this case to the district court so that it might have the benefit of the intervening rule announced in Apprendi, 530 U.S. at 466, 120 S.Ct. at 2348. We stated, "[i]n that respect we vacate the sentences of Appellants Davis, McCauley, and Ramsey and remand for resentencing or a new trial. In all other respects, however, we find no merit in Appellants' arguments on appeal and affirm the district court." United States v. Davis, 273 F.3d 396, 2001 WL 921301, slip op. at 19 (11th Cir.2001). On remand, the district court determined it could rely on the evidence already presented to resolve the Apprendi issue. This determination obviated Appellants' entitlement to have new evidence presented prior to resentencing. Tamayo, 80 F.3d at 1520. The district court properly declined to hear new evidence at Appellants' resentencing hearing.

B. U.S.S.G. § 5G1.2(c) & (d)

Appellants contend the district court abused its discretion by imposing consecutive sentences pursuant to U.S.S.G. § 5G1.2(d). They argue the sentencing guidelines require the court to impose a concurrent sentence where, as here, the total punishment imposed on the § 841 count was less than or equal to the highest statutory maximum. U.S.S.G. § 5G1.2(c). Citing cases from other circuits, Appellants contend sentencing courts are authorized to exercise alternative sentencing configurations to avoid manifest injustice and prejudice to the defendant. Furthermore, Appellants contend the district court's imposition of consecutive sentences violates the rule in Apprendi, in that the total term of imprisonment exceeds the guideline range for any count for which Appellants were convicted.

1. Application of U.S.S.G. § 5G1.2(d)

The Sentencing Reform Act of 1984 provides, "If multiple terms of imprisonment are imposed on a defendant at the same time ... the terms may run concurrently or consecutively.... Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively. Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently." Sentencing Reform Act of 1984 § 212(a)(2), 18 U.S.C. § 3584. U.S.S.G. § 5G1.2(d), however, provides that, when there are multiple counts of conviction,

[i]f the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.

Appellants note that despite the clear dictate of § 5G1.2(d), this Circuit has never directly addressed the question of whether the district court retains the discretion to sentence a defendant to concurrent terms of imprisonment when § 5G1.2(d) calls for consecutive terms of imprisonment. A majority of other circuits have held that the imposition of consecutive sentences under § 5G1.2(d) is mandatory. See United States v. Diaz, 296 F.3d 680, 684-85 (8th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 43, 154 L.Ed.2d 247 (2002); United States v. Price, 265 F.3d 1097, 1109 (10th Cir.2001), cert. denied, 535 U.S. 1099, 122 S.Ct. 2299, 152 L.Ed.2d 1056 (2002) (mem.); United States v. Kentz, 251 F.3d 835, 842 (9th Cir.2001), cert. denied, 535 U.S. 933, 122 S.Ct. 1309, 152 L.Ed.2d 219 (2002) (mem.); United States v. Angle, 254 F.3d 514, 518-19 (4th Cir.), cert. denied, 534 U.S. 937, 122 S.Ct. 309, 151 L.Ed.2d 230 (2001) (mem.); United States v. Page, 232 F.3d 536, 544-45 (6th Cir.2000). But see United States v. Velasquez, 304 F.3d 237, 242-43 (3d Cir.2002) (holding that the district court retained the discretion under 18 U.S.C. § 3854 to run sentences concurrently without departing even when § 5G1.2(d) applies); United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001) (indicating that the application of § 5G1.2(d) is discretionary).

A review of the law of this Circuit indicates that we are inclined to join the majority of our sister circuits. See United States v. Gallego, 247 F.3d 1191, 1200 n. 19 (11th Cir.2001), cert. denied, 534 U.S. 1084, 122 S.Ct. 820, 151 L.Ed.2d 702 (2002) (mem.) (indicating in dicta that no error existed because, if the case were remanded, the district court would be required under § 5G1.2(d) to stack the defendant's sentences and reach the same result); United States...