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

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtAnderson
Citation400 F.3d 1297
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marco D. DUNCAN, Defendant-Appellant.
Decision Date24 February 2005
Docket NumberNo. 03-15315.
400 F.3d 1297
UNITED STATES of America, Plaintiff-Appellee,
v.
Marco D. DUNCAN, Defendant-Appellant.
No. 03-15315.
United States Court of Appeals, Eleventh Circuit.
February 24, 2005.

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Michael Robert Ufferman (Court-Appointed), Michael Ufferman Law Firm, P.A., Robert Augustus Harper, Jr. (Court-Appointed), 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.

ANDERSON, Circuit Judge:


The panel's opinion in this case issued on August 18, 2004, and was published in 381 F.3d 1070 (11th Cir.2004). A petition for rehearing en banc was filed. We construe it also as a petition for rehearing by the original panel. We now grant panel rehearing, vacate the previous opinion published in 381 F.3d 1070, and substitute in its stead the instant opinion. In this opinion, we focus on Duncan's sentencing argument, reviewing for plain error in light of the Supreme Court's decision in United States v. Booker, 542 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that Duncan cannot overcome the third prong of plain error analysis because he cannot show an error that affected his substantial rights. See United States of America v. Rodriguez, 398 F.3d 1291, (11th Cir.2005).

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 of drugs involved in a drug conspiracy for the purpose of sentencing.1 After the initial briefing in this case, the Supreme Court decided Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and accordingly, we ordered supplemental briefing on the issue. 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 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. In

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our initial opinion, we reviewed Duncan's sentence for plain error and concluded that the district court could not have committed "plain" error by failing to apply Blakely in the context of the Federal Sentencing Guidelines ("Guidelines").

After our initial opinion, the Supreme Court decided United States v. Booker, ___ U.S. ___, 135 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court issued two separate majority opinions. First, Justice Stevens wrote for the Court and held that the rule announced in Blakely applied to the Guidelines. Booker, 125 S.Ct. at 745. He based his opinion on the premise that the Guidelines were mandatory and imposed binding requirements on all sentencing judges. Id. at 749. Second, and in light of Justice Stevens' holding, Justice Breyer wrote for the Court and invalidated two provisions of the Sentencing Reform Act of 1984 that had the effect of making the Guidelines mandatory. Id. at 756. The Court instructed that both holdings — the Sixth Amendment holding and the remedial interpretation of the Sentencing Act — should be applied to all cases on direct review. Id. at 769. We requested and received supplemental briefs addressing the effect of the Supreme Court's decision in Booker. We now consider Duncan's claim in light of Booker.

On February 20, 2002, the appellant, Marco D. Duncan, and several other co-defendants were charged with conspiracy to distribute and to 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 beyond a reasonable doubt that the conspiracy involved five kilograms or more of cocaine, but found that the government failed to prove beyond a reasonable doubt that the conspiracy involved fifty grams or more of cocaine base. At sentencing, the district court calculated Duncan's base offense level by finding that a portion of cocaine powder had been converted into 12.24 kilograms of cocaine base, or crack. Had Duncan's base offense level been calculated solely using the jury's special verdict, his base offense level would have been 32 instead of 38 under the 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." On October 10, 2003, the district court sentenced Duncan to life imprisonment2 and ordered forfeiture in the amount of $340,000.3 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

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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;4 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 that the conspiracy involved only cocaine powder, precluded the district court from sentencing Duncan based, in part, on its finding that the offense involved 12.24 kilograms of cocaine base, or crack. 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, his 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 on a judicial finding of cocaine base constitutes plain error in light of the Supreme Court's holding in Booker. See United States v. Candelario, 240 F.3d 1300, 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 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 Booker 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) (applying 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 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). Indeed, the Supreme Court in Booker expressly directed appellate courts to "apply ordinary prudential doctrines," including plain error, in conducting review of Booker errors. Booker, 125 S.Ct. at 769.

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 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).

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In United States v. Rodriguez, we applied plain error analysis in light of Booker to a claim that the defendant's sentence violated his Fifth and Sixth Amendment rights because it was based on a judge's finding of facts that were neither charged in an indictment nor proven to a jury. 398 F.3d 1291, (11th Cir.2005). The Rodriguez opinion stated that, after Booker, a sentence enhancement based on a fact, other than a prior conviction, found solely by the judge in a mandatory guideline system met the first and second prongs of the plain error test. Id. at 1298-99. The court stated that the error was not that there were "extra-verdict enhancements" that led to an...

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174 practice notes
  • U.S. v. Faust, No. 05-11329.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 21, 2006
    ...decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), casts doubt on it. In United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005), however, we held nothing in Booker prohibits co......
  • U.S. v. Grier, No. 05-1698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 2007
    ...v. Dare, 425 F.3d 634, 642 (9th Cir.2005); United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. Grier rejects the rationale of these decisions and proposes a novel standard under which the right to proof beyond a reasonab......
  • U.S. v. White, No. 05-6596.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 24, 2008
    ...(same), abrogated on other grounds as recognized in United States v. Lake, 419 F.3d 111, 113 n. 2 (2d Cir.2005); United States v. Duncan, 400 F.3d 1297, 1303 (11th Cir.2005) (same); United States v. Smith, 413 F.3d 778, 781 (8th Cir.2005) (same). So long as the defendant receives a sentence......
  • Thompson v. Williams, Case No. 3.-07-CV-3550.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 5, 2010
    ...court's discretion to impose consecutive sentences for committing multiple (in this case, seven) felonies. See United States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.2006) (quoting Dobbert v. Florida, 432 U.S. 282, 297, [685 F.Supp.2d 725] 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) ("[T]he o......
  • Request a trial to view additional results
174 cases
  • U.S. v. Faust, No. 05-11329.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 21, 2006
    ...decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), casts doubt on it. In United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 432, 163 L.Ed.2d 329 (2005), however, we held nothing in Booker prohibits co......
  • U.S. v. Grier, No. 05-1698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 5, 2007
    ...v. Dare, 425 F.3d 634, 642 (9th Cir.2005); United States v. Magallanez, 408 F.3d 672, 685 (10th Cir.2005); United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. Grier rejects the rationale of these decisions and proposes a novel standard under which the right to proof beyond a reasonab......
  • U.S. v. White, No. 05-6596.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 24, 2008
    ...(same), abrogated on other grounds as recognized in United States v. Lake, 419 F.3d 111, 113 n. 2 (2d Cir.2005); United States v. Duncan, 400 F.3d 1297, 1303 (11th Cir.2005) (same); United States v. Smith, 413 F.3d 778, 781 (8th Cir.2005) (same). So long as the defendant receives a sentence......
  • Thompson v. Williams, Case No. 3.-07-CV-3550.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 5, 2010
    ...court's discretion to impose consecutive sentences for committing multiple (in this case, seven) felonies. See United States v. Duncan, 400 F.3d 1297, 1307 (11th Cir.2006) (quoting Dobbert v. Florida, 432 U.S. 282, 297, [685 F.Supp.2d 725] 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) ("[T]he old st......
  • Request a trial to view additional results

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