U.S. v. Duncan, No. 03-15315.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Anderson
• Citation: 381 F.3d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marco D. DUNCAN, Defendant-Appellant.
• Docket Number: No. 03-15315.
• Decision Date: 18 August 2004

381 F.3d 1070 UNITED STATES of America, Plaintiff-Appellee,
v.
Marco D. DUNCAN, Defendant-Appellant. No. 03-15315. United States Court of Appeals, Eleventh Circuit. August 18, 2004.

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Robert Augustus Harper, Jr. and Michael Robert Ufferman (Court-Appointed), Robert Augustus Harper Law Firm, P.A., Tallahassee, FL, for Defendant-Appellant.

Robert G. Davies, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before ANDERSON and BIRCH, Circuit Judges, and LAND^*, District Judge.

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ANDERSON, Circuit Judge:

On February 20, 2002, the appellant, Marco D. Duncan, and several other codefendants were charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 21 U.S.C. § 846. The indictment also alleged a criminal forfeiture count.

Prior to trial, Duncan filed a motion to suppress all evidence obtained from the search of his vehicle at the time of his arrest. The district court denied the motion.

Duncan's trial commenced on July 21, 2003. The jury found Duncan guilty as charged, and by a special verdict found that the conspiracy involved five kilograms or more of cocaine. A bifurcated forfeiture proceeding was conducted, and the jury returned a forfeiture verdict of $340,000 against the defendant. On October 10, 2003, the district court sentenced Duncan to life imprisonment and ordered forfeiture in the amount of $340,000. Duncan timely appealed.

Duncan raised various arguments with respect to his conviction, sentence, and forfeiture. After oral argument and careful consideration, we reject without need for further discussion the following arguments asserted by Duncan on appeal: 1) that the district court erred by denying his motion to suppress the evidence obtained from the April 21, 2003 search; 2) that the district court erred by enhancing his sentence two levels for the possession of a firearm; 3) that the district court erred by enhancing his sentence four levels based upon his role in the offense; and 4) that the forfeiture count of the indictment failed to set forth with the specificity required by the Fifth Amendment Due Process Clause the property that the Government claimed was obtained as a result of the alleged conspiracy.

Duncan's remaining argument on appeal is that the special verdict by the jury, finding cocaine powder, precluded the district court at sentencing from calculating Duncan's base offense level by finding that 12.24 kilograms of cocaine powder had been converted into cocaine base, or crack. Had Duncan's base offense level been calculated for cocaine powder instead of cocaine base, his base offense level would have been 34 instead of 38 under the Federal Sentencing Guidelines ("Guidelines"). However, the district court set the base offense level at 38 stating, "I certainly find from the evidence, by a preponderance at least, and actually more than that, that Mr. Duncan knew and it was reasonably foreseeable to him that it was being converted into crack cocaine, most of it converted, and sold in that form."

In his initial brief on appeal, Duncan argued that the jury and not the district court judge should have made the determination of the type and quantity involved in the drug conspiracy. After the regular briefing in this case, the Supreme Court decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In Blakely, the Supreme Court applied the rule set out in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and held that the imposition—based solely on the sentencing judge's factual findings—of a sentencing enhancement above the 53 month standard range indicated in the State of Washington's Sentencing Reform Act violated Blakely's Sixth Amendment rights because the facts supporting the findings were neither admitted by Blakely nor found by a jury. Because Duncan raised in his initial brief a similar challenge to that raised by

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Blakely—namely that the factual finding that the conspiracy involved cocaine base should have been determined by the jury instead of the sentencing judge—Duncan raised this issue in a timely manner on appeal, and we ordered supplemental briefing with respect to Blakely.¹

However, Duncan failed to raise this issue in the district court at any time, either during the trial or at sentencing. Although Duncan did object below to the setting of the base offense level pursuant to a finding of cocaine base instead of cocaine powder, Duncan's argument below was limited to a sufficiency of the evidence argument that it was impossible to determine from the evidence what quantity of the cocaine powder had been cooked into crack. That Duncan's objection below was limited to the sufficiency of the evidence indicating cocaine base and did not include any type of objection based upon the Sixth Amendment is clear from his written objections to his Presentence Investigation Report ("PSI") as well as the transcript from the sentencing hearing. Therefore, because Duncan failed to raise a Sixth Amendment argument below, our review is limited to determining whether setting the base offense level based upon the sentencing judge's finding of cocaine base constitutes plain error in light of the Supreme Court's holding in Blakely. See United States v. Candelario, 240 F.3d 1300, 1304, 1308 (11th Cir.2001) (noting that where a defendant did not make an Apprendi-based objection before the district court at sentencing, review is limited to plain error review; and noting that a sufficiency of the evidence objection is not a constitutional objection); United States v. Sanchez, 269 F.3d 1250, 1280 (11th Cir.2001) (en banc) (applying plain error review where Apprendi claim raised for the first time on appeal). The fact that Blakely was decided subsequent to the judgment in the district court does not alter our use of the plain error standard. See United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (applying plain error to an Apprendi claim where Apprendi was decided while the appeal was pending in the Fourth Circuit); Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (where the argument was first raised on appeal and was based upon a case decided by the Supreme Court after the defendant's conviction but before her appeal, the Court applied plain error review to the issue of whether the materiality of a false statement was an element of an offense such that it had to be submitted to a jury).

We have discretion to correct an error under the plain error standard where (1) an error occurred, (2) the error was plain, (3) the error affected substantial

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rights, and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-79, 123 L.Ed.2d 508 (1993).

In order to satisfy the second prong, the error must be "obvious" or "clear under current law." United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001). With regards to this second prong, we cannot conclude that it is obvious from Blakely that the case would apply to render unconstitutional judicial fact finding leading to sentence enhancement under the Federal Sentencing Guidelines. The Court in Blakely expressly states, "The Federal Guidelines are not before us, and we express no opinion on them." Blakely, 124 S.Ct. at 2538 n. 9. Further, as we previously concluded in United States v. Curtis, 380 F.3d at 1311, n. 2, 2004 WL 1774785 (11th Cir. Aug.10, 2004), there is considerable disagreement amongst jurists and amongst the circuits on this issue. In Curtis, we illustrated this disagreement by citing cases from the Seventh, Eighth², and Ninth Circuits holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines and cases from the Fifth and Fourth Circuits holding that Blakely does not apply to the Guidelines. Id. We also cited the Second Circuit's en banc opinion in United States v. Penaranda, 375 F.3d 238 (2d Cir. July 12, 2004), certifying the question of Blakely's application to...