U.S. v. Gibson

• Citation: 434 F.3d 1234
• Decision Date: 04 January 2006
• Docket Number: No. 04-14776.,04-14776.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Steven GIBSON, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

434 F.3d 1234

UNITED STATES of America, Plaintiff-Appellant, v. Steven GIBSON, Defendant-Appellee.

No. 04-14776.

United States Court of Appeals, Eleventh Circuit.

January 4, 2006.

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Kathleen M. Salyer, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

Richard C. Klugh, Jr., Kathleen M. Williams and Stewart Glenn Abrams, Fed. Pub. Defenders, and Jacqueline Esther Shapiro, Asst. Fed. Pub. Def., Miami, FL, for Gibson.

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

Before TJOFLAT and BARKETT, Circuit Judges, and MILLS^*, District Judge.

TJOFLAT, Circuit Judge:

In this appeal, the United States challenges the decision of the District Court for the Southern District of Florida not to designate Steven Gibson a career offender pursuant to section 4B1.1 of the U.S. Sentencing Guidelines.¹ The district court concluded that under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), it could not classify Gibson as a career offender because the Government did not prove to a jury the nature of Gibson's prior convictions (i.e., that those prior convictions were felonies involving controlled substances) or the fact that Gibson was at least eighteen years old at the time he committed the offense in this case. We conclude that the Supreme Court's decision in Blakely, and its subsequent decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), did not prevent the district court from considering Gibson's prior convictions, determining his age at the time he committed the instant offense, and designating him a career offender. Even though the Sentencing Guidelines are now advisory, the district court had an obligation correctly to interpret and consult them. It failed to do so by disregarding Gibson's prior convictions. Accordingly, we vacate Gibson's sentence and remand his case to the district court for re-sentencing.

Part I of this opinion describes the facts of Gibson's arrest and the sentencing proceedings in the district court that led to this appeal. In Part II, we review the district court's holding that it could not classify Gibson as a career offender under U.S.S.G. § 4B1.1. In Part III, we provide guidance on how the district court, on remand, should determine Gibson's sentence. In Part IV, we conclude our discussion.

I.

On February 22, 2001, two officers of the Monroe County, Florida Sheriff's Department were conducting surveillance from an unmarked vehicle on U.S. Highway 1 in the Florida Keys. Based on an informant's tip, the officers were instructed to "be on the lookout" for a vehicle occupied by Gibson and his cousin, who were believed to be transporting narcotics. During the surveillance the officers observed a vehicle with a low-hanging muffler commit several traffic violations, including two lane changes without the proper use of turn signals and driving in excess of the speed limit.

The officers stopped the vehicle. The driver, Edward Brown, stepped out, leaving Gibson in the front passenger seat. Another officer from the Monroe County Sheriff's office, Detective Gene Thompson, arrived on the scene while one of the officers checked Brown's driver's license. Gibson asked one of the officers whether he could speak with Detective Thompson. While still seated in the vehicle, Gibson informed Detective Thompson that he was in possession of $1100, and that he "would like to hang on to his money." When Detective Thompson asked Gibson why he was concerned about retaining possession of the money, Gibson replied that he had "some powder in his pocket." At Detective Thompson's request, Gibson repeated this statement in front of one of the other officers.

After receiving verbal permission from Gibson, Detective Thompson retrieved from Gibson's pocket nine bags of white powder, which a field test determined to be cocaine. Detective Thompson then placed Gibson under arrest. According to the Government, Gibson waived his Miranda² rights and directed the officers to two half "cookies" of crack cocaine, near where Gibson had been seated in the vehicle. After obtaining Gibson's oral and written consent to search the vehicle, the officers retrieved 22.6 grams of powder cocaine and 4.6 grams of crack cocaine.

A.

On March 7, 2001, Gibson was indicted on one count for possessing with intent to distribute five grams or more of cocaine base ("crack cocaine"), having previously been convicted of a felony drug offense, in violation of 21 U.S.C. § 841(a)(1).³ Prior to trial, the Government filed with the district court and served on Gibson a second offender information, requesting a sentence enhancement pursuant to 21 U.S.C. § 851(a).⁴ The information listed six of Gibson's previous drug-related felony convictions under Florida law.⁵ Based on these prior convictions, 21 U.S.C. § 841(b)(1)(B) increased the statutory minimum sentence to which Gibson was subject from five years to ten years, and increased his statutory maximum sentence from forty years to life imprisonment.⁶

After the district court denied Gibson's motion to suppress evidence,⁷ a two-day trial was conducted on September 6 and 7 2001. The jury returned a guilty verdict against Gibson, finding beyond a reasonable doubt that "the cocaine base weighed more than five grams," and that Gibson was "previously convicted of a felony, that is, a crime punishable by a term of imprisonment exceeding one year."

The United States probation officer assigned to Gibson's case prepared a presentence investigation report ("PSI") which summarized Gibson's criminal record. Based on this record, the PSI calculated Gibson's base offense level to be 28 pursuant to U.S.S.G. § 2D1.1(c)(6),⁸ and his criminal history points to be 18 pursuant to U.S.S.G. § 4A1.1. Gibson's 18 criminal history points gave him a Criminal History Category of VI.⁹ Finally, the PSI stated that Gibson is a career offender pursuant to U.S.S.G. § 4B1.1 because he has at least two prior felony drug convictions and he was at least eighteen years old at the time he committed the instant offense.¹⁰ With the career offender enhancement, Gibson's base offense level was 37 and his Criminal History Category VI, with a corresponding sentencing range of 360 months to life imprisonment.

In Gibson's objections to the PSI filed with the district court, he did not contest the PSI's summary of his criminal record, nor did he challenge its calculation of his criminal history points. Rather, he requested a downward departure on two grounds. First he contended that, pursuant to U.S.S.G. § 4A1.3, a Criminal History Category of VI overrepresented the seriousness of his criminal record.¹¹ Second, he asserted that, pursuant to U.S.S.G. § 5K2.0,¹² the sentencing guidelines range of 360 months to life imprisonment was disproportionate to the offense of his conviction, which involved less than 23 grams of cocaine base.¹³

Gibson asked the district court to consider two alternative sentences, neither of which would classify him as a career offender. First, Gibson asked the court to apply the Sentencing Guidelines without regard to the U.S.S.G. § 4B1.1 career offender enhancement, which would have reduced his offense level to 28, Criminal History Category VI, with a corresponding sentencing range of 140 to 175 months. Alternatively, Gibson requested that the court sentence him without regard to the 21 U.S.C. § 851 statutory multiple offender enhancement, which would have reduced his base offense level to 34, Criminal History Category VI, with a corresponding sentencing range of 262 to 327 months.

At Gibson's sentencing on December 6, 2002, the district court concluded that "the criminal history envisioned by the sentencing guidelines commission is excessive, and applying it in this case does over represent [sic] the defendant's criminal past." Over the Government's objections, the district court departed downward along the vertical axis of the Sentencing Table, from the base offense level of 37 indicated in the PSI to 28, Criminal History Category VI, and sentenced Gibson to 140 months imprisonment to run concurrently with state sentences Gibson had already been serving.¹⁴ The Government appealed Gibson's sentence to this court. Gibson cross-appealed, challenging the district court's denial of his motion to suppress.

On direct appeal, the Government challenged the district court's downward departure based on overrepresentation. The Government also argued that the district court erred in the manner in which it implemented the departure. We affirmed Gibson's conviction and vacated his sentence, remanding the case to the district court for re-sentencing. United States v. Gibson, 92 Fed.Appx. 781 (11th Cir.2004). We directed the court to proceed along the horizontal axis of the Sentencing Table and discuss each criminal history category en route to the category that most appropriately reflected Gibson's criminal history, in accordance with our decision in United States v. Smith, 289 F.3d 696, 711 (11th Cir.2002).

B.

Prior to Gibson's re-sentencing, the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) in which it held that the State of Washington's mandatory sentencing guidelines system violated the Sixth Amendment by imposing sentence enhancements based on facts neither admitted by the defendant nor found by a jury.

At Gibson's re-sentencing hearing on July 8, 2004, the Government contended that Blakely did not apply to the Sentencing Guidelines, and therefore had no bearing on whether Gibson could be classified as a career offender based on his prior felony convictions. The Government also asserted that the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), required the same conclusion. In Almendarez-Torres the Court held that, for sentencing purposes, the fact of a...