U.S. v. Green

• Decision Date: 06 February 2006
• Docket Number: No. 05-4270.,05-4270.
• Citation: 436 F.3d 449
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles Aaron GREEN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

436 F.3d 449

UNITED STATES of America, Plaintiff-Appellant, v. Charles Aaron GREEN, Defendant-Appellee.

No. 05-4270.

United States Court of Appeals, Fourth Circuit.

Argued October 28, 2005.

Decided February 6, 2006.

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ARGUED: Christopher John Romano, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellant. Martin Gregory Bahl, Office Of The Federal Public Defender, Baltimore, Maryland, for Appellee. ON BRIEF: Allen F. Loucks, United States Attorney, Baltimore, Maryland, for Appellant. James Wyda, Federal Public Defender, Greenbelt, Maryland, for Appellee.

Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.

Vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WIDENER and Judge GREGORY joined.

OPINION

NIEMEYER, Circuit Judge.

Charles Aaron Green pleaded guilty to conspiracy to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. Although Green qualified as a career offender under U.S.S.G. § 4B1.1, having two prior felony convictions for drug trafficking, the district court decided not to sentence Green as a career offender because that status "does not fit Mr. Green."

The government appealed, and we review the district court's sentence "for unreasonableness." United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005); United States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). Concluding that Green's sentence resulted from an incorrect application of the Sentencing Guidelines, we vacate the sentence and remand the case for resentencing under the principles set forth below. See 18 U.S.C. § 3742(f)(1).

I

On March 18, 2003, an undercover Baltimore County (Maryland) police detective met with an unnamed drug dealer at a restaurant in White Marsh, Maryland, to purchase cocaine. The dealer indicated that his supplier would arrive soon with the drugs. Surveillance officers witnessed Charles Green arrive and meet briefly with the dealer, who then returned to the detective with 27 grams of cocaine powder, which he sold to the detective. The detective arranged to meet with the dealer again on March 27, 2003 to purchase nine ounces of cocaine base.

On March 27, 2003, when Green arrived at the designated location, he was arrested and nine ounces of cocaine base were recovered from his vehicle. A search of his residence yielded an additional 14 grams of cocaine base, paraphernalia used to cut and package cocaine base, and $3500 in cash. After being advised of his Miranda rights, Green told the officers that he had begun buying cocaine in 2002 in quarter-kilogram quantities, and had progressed thereafter to buying larger amounts for resale.

Green was indicted in two counts, charging him with conspiring to distribute at least 50 grams of cocaine base, in violation of 21 U.S.C. § 846, and possessing at least 50 grams of cocaine base with intent to distribute it, in violation of 21 U.S.C. § 841. Pursuant to a plea agreement, Green pleaded guilty to the conspiracy count. The agreement provided that, given the amount of drugs involved, the base offense level under the Sentencing Guidelines was 34, but that if the sentencing court found Green to be a career offender under U.S.S.G. § 4B1.1(B), the base offense level would be 37 and the criminal history category would be VI.

At sentencing, the parties agreed that Green qualified as a career offender: he was 28 years old at the time he committed the offense in this case; the instant offense is a felony involving controlled substances; and Green had two prior convictions for controlled substance offenses as an adult. See U.S.S.G. § 4B1.1. Green's two prior convictions were Maryland state convictions for possession with intent to distribute illegal drugs. On October 10, 1995, a Harford County Joint Narcotics Task Force searched Green's apartment, finding Green in a living room chair next to 25 plastic baggies of cocaine and finding one-and-a-half ounces of cocaine elsewhere in his apartment. Green was indicted in five counts charging him with possession with intent to distribute cocaine and related violations. Apparently, he was released following his arrest, because he was arrested again two weeks later.

On October 25, 1995, Green was arrested again in Harford County and charged in four counts for controlled dangerous substances violations and resisting arrest. This arrest involved Green's possession of 43 ziplock baggies of cocaine. Apparently Green remained incarcerated after this arrest until his sentencing in January 1997.

On January 6, 1997, Green pleaded guilty to one count of possession with intent to distribute cocaine on October 10, 1995, and to one count of possession with intent to distribute controlled dangerous substances on October 25, 1995. With respect to the October 10 offense, Green was sentenced to 20 years' imprisonment, which was suspended, and to 5 years' probation. With respect to his October 25 offense, Green was sentenced to 12 years' imprisonment, the service of which commenced with his second arrest on October 25, 1995.

On March 29, 2000, Green was paroled and began parole supervision for the remainder of his 12-year term, to continue until October 24, 2007. At that time, he also began his 5-year probation for his October 10, 1995 conviction.

At sentencing in this case, Green's counsel argued that even though Green qualified for career offender status, that status over-represented Green's criminal history, and he asked the court "to simply depart down to the same level he would be at as if he was not a career offender." Counsel argued that because Green's two prior offenses were close in time and involved relatively small amounts of cocaine, they constituted an aberration in Green's history, which contained no other convictions. Counsel for Green also requested downward departures for acceptance of responsibility and substantial assistance to the government.

The government opposed Green's request not to be sentenced as a career offender, contending that Green was getting a break even as a career offender because the government did not provide Green with notice under 21 U.S.C. § 851 relating to his prior convictions. Had it done so, Green would have faced a mandatory life sentence. See 21 U.S.C. § 841(b). Counsel also noted that Green's prior offenses involved enough cocaine that if Green were sentenced under federal law, he would have faced a mandatory minimum sentence of 20 years. Finally, the government noted that after his arrest on the federal charges in 2003, Green was released, over the government's objection, to a half-way house, from which he fled, remaining a fugitive for two months before he was rearrested.

The district court acknowledged that "Mr. Green technically fits within the [career offender] section," but that section "does not fit Mr. Green." The court believed that the career offender section was directed at recidivists who have demonstrated that they will make no effort to live a law-abiding life and who have no intention of making an honest living. The court explained that Green was not from this mold. The court noted first that even though Green's two prior state offenses were not formally consolidated, they were close in time, and the state court "essentially treated them as part of the same offense." In essence, the court found that the proximity of the offenses in time demonstrated "a lack of willingness to re-offend at two distinct periods of time." The court also noted that after Green was released on parole in 2000, he made "significant efforts to obtain lawful employment," but was frustrated in this attempt. The court stated this "real effort" was uncharacteristic of the typical career offender, who makes no attempt to lead a law-abiding life. In addition, the court found that Green did not use guns or violence in his crimes, making him "atypical of the typical drug, crack cocaine defendant." Finally, the court noted that Green was still capable of making a contribution to society once released, based on his young age, education, and family support. The court thus did not sentence Green as career offender, but rather as having a criminal history category of III.

In addition, the court granted Green a three-point reduction in his offense level for acceptance of responsibility and a four-level reduction in his offense level under U.S.S.G. § 5K1.1 for substantial assistance. As a result, the court concluded that under the Sentencing Guidelines, Green had a total offense level of 27 with a criminal history category of III, resulting in a guideline range of 87 to 108 months' imprisonment. The court sentenced Green to 87 months' imprisonment.

From the judgment entered, the government filed this appeal, contending that the sentence was unreasonable.

II

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that an application of the Sentencing Guidelines in which the district court enhanced the defendant's sentence based on facts it found during the sentencing proceeding violated the Sixth Amendment. Concluding that the mandatory application of the Sentencing Guidelines is what offended the Sixth Amendment jury right, the Court observed:

If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment.... Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges.... The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.

Booker, 125 S.Ct. at 750. Based on its...