U.S. v. Milam
| Decision Date | 06 April 2006 |
| Docket Number | No. 04-4224.,No. 04-4225.,04-4224.,04-4225. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jason Oma MILAM, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Dewayne Lee Milam, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Jonathan David Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. John Lanier File, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public Defender, Charleston, West Virginia, for Appellant Jason Oma Milam; Jason D. Parmer, Hinton, West Virginia, for Appellant Dewayne Lee Milam. Kasey Warner, United States Attorney, Charleston, West Virginia, for Appellee.
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Gregory joined. Judge Shedd wrote an opinion concurring in part and dissenting in part.
In these cases, we hold that facts stated in a presentence report may not, at sentencing, be deemed to be admissions by the defendant sufficient to bypass the Sixth Amendment right to a jury trial as articulated in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), even though the defendant, who had been given the presentence report before sentencing, did not object to the facts. We therefore conclude that the district court violated the defendant's Sixth Amendment rights in each case when it relied on facts stated in the presentence report to enhance the defendant's sentence beyond the statutory minimum. We vacate the sentences in these two appeals and remand for resentencing.
During September and October 2002, agents with the Tri-Lateral Drug and Violent Crime Task Force conducted an investigation of drug trafficking in Beckley, West Virginia, by Jason and Lee Milam, who are brothers. Using cooperating witnesses, the agents made three controlled purchases of cocaine powder and "Ecstasy" (3,4-methylene-dioxymethamphetamine) pills from the Milams during September and October 2002. After additional evidence was obtained during searches of the Milams' residences, the two were charged in a seven-count indictment with trafficking in cocaine and Ecstacy.
Each pleaded guilty to Count 6, which charged the two with aiding and abetting each other on October 2, 2002, in distributing an unspecified quantity of Ecstasy, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. During the plea colloquy, the brothers admitted to participating in a sale to a confidential informant of 51 pills of Ecstasy for $20 each.
In preparation for sentencing, the Probation Office prepared a pre-sentence report in which the Probation Officer concluded, pursuant to statements taken from Jason and Lee, as well as from independent sources, that Jason and Lee had, during the relevant period, purchased amounts of cocaine and Ecstasy equivalent to 157.7 kilograms of marijuana under the Sentencing Guidelines. In making that calculation, the Probation Officer included 80 pills of Ecstacy purchased by Jason, 500 pills purchased by Lee, and specified amounts of cocaine purchased by each. Converting these quantities to their marijuana equivalents, the Probation Officer proposed a sentencing level of 26 for their relevant conduct. The Probation Officer also proposed a two-level enhancement for each brother because a firearm was possessed in connection with the drug trafficking. Finally, the Probation Officer recommended that no downward adjustment be given to either brother for acceptance of responsibility because each had tested positive for drugs while released on bond.
At sentencing, Lee Milam objected to the amount of drugs attributed to him, contending that he should be sentenced only on the basis of 51 pills of Ecstasy, the quantity to which he admitted in pleading guilty. He also objected to the firearm enhancement and to the Probation Officer's recommendation to deny him credit for acceptance of responsibility. The district court overruled in part Lee's objections to the drug amount. The court found that 580 Ecstasy pills should be imputed to him, as well as the cocaine that he sold himself and the cocaine that was found in Jason's trunk. Accordingly, the court found that the relevant conduct included the purchase of the equivalent of 87 kilograms of marijuana, yielding a base offense level of 24. The court denied Lee a downward adjustment for acceptance of responsibility because of his continuing criminal activity after arrest. The court sustained Lee's objection with respect to the firearm enhancement. The court sentenced Lee to 51 months' imprisonment, which was at the bottom of the range of 51-63 months for an offense level of 24 and a criminal history category of I.
At sentencing, Jason Milam objected to the Probation Officer's recommendation to deny him credit for acceptance of responsibility. He did not object to the drug quantity attributed to him or to the firearm enhancement. The district court overruled Jason's objection and adopted the presentence report's factual finding that Jason's relevant conduct included the purchase of drugs equivalent in amount to 157.7 kilograms of marijuana and that Jason possessed a firearm in connection with drug trafficking. The district court sentenced Jason to 87 months' imprisonment, which was at the bottom of the range of 87 to 108 months for an offense level of 28 and a criminal history category of I.
From the sentences entered, both Lee and Jason appealed.
The government properly concedes that Lee Milam's sentence violated his Sixth Amendment rights under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Lee pleaded guilty to aiding and abetting in the distribution of an unspecified quantity of Ecstasy. The 51 pills to which Lee admitted in his guilty plea would lead to an offense level of 12 and a sentencing range of 12 to 18 months. Instead, the district court found, over Lee's objection, that he should be accountable for a greater quantity of drugs, which resulted in an offense level of 24 and a sentencing range of 51 to 63 months. In these circumstances, we take note of plain error and vacate Lee's sentence, remanding for resentencing. See United States v. Hughes, 401 F.3d 540 (4th Cir.2005).
Jason Milam makes a Booker argument similar to Lee's. He and Lee pleaded guilty to the same count — aiding and abetting in the distribution of an unspecified quantity of Ecstasy. At his plea hearing, Jason, like his brother, admitted to having distributed at most the 51 Ecstasy pills involved in the controlled purchase on October 2, 2002. He argues that the sale to which he admitted should have resulted in an offense level of 12 with a sentencing range of 12 to 18 months. Instead, the district court found that he should be accountable for the quantity of drugs stated in his presentence report, which, along with the firearm enhancement, resulted in an offense level of 28, with a sentencing range of 87 to 108 months. The district court's sentence of 87 months exceeded the 18 months permitted by his guilty plea, and Jason therefore contends that his Sixth Amendment rights, as articulated in Booker, were violated.
The government contends that Jason's circumstances are different because Jason, unlike Lee, did not object to the proposed findings of drug quantity and firearm involvement contained in the presentence report, and his failure to object constituted an admission of those facts for sentencing purposes. Specifically, the government contends that the "defendant's failure to object [to the presentence report] was functionally the same as admitting the facts." It argues:
The [district] court's use of defendant's failure to object to significant provisions of the presentence report as admissions is consistent with common practice and common sense. Certainly defendant was aware that the presentence report was important in the sentencing process, and that his lack of objection would be treated as an admission. There is no reason to assume that his experienced defense counsel failed to so advise him — defendant asserts no such claim and does not accuse his sentencing counsel of incompetence, and, in fact, defendant's appellate counsel acknowledges that counsel at sentencing may have had legitimate strategic reasons for not objecting to the relevant conduct amount. Furthermore, the district court advised defendant at the plea hearing that it could not determine what an appropriate sentence would be until it received the presentence report. At sentencing the court asked Jason if he had read the presentence report, if he had gone over it with his lawyer, and if he understood it, to all of which he replied in the affirmative. Only then did the court actually formally adopt the report.
The government relies on Federal Rule of Criminal Procedure 32(i)(3)(A), which authorizes the district court to "accept any undisputed portion of the presentence report as a finding of fact," and on U.S.S.G. § 6A1.2(b), which provides that "parties must state in writing any objections, including objections to material information ... contained in or omitted from" the presentence report. It points out that when such an objection is made, the district court is directed to resolve the objection at the sentencing hearing pursuant to Rule 32(i)(3), as it did with respect to Lee's objection to drug quantity. See U.S.S.G. § 6A1.3(b). The government cites to a line of cases in which we have concluded that a defendant's failure to object justifies the district court's reliance on the presentence report for factual matters. See United States v. Thompson, 421 F.3d 278, 285-86 (4th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1463, ___ L.Ed.2d ___ (2006); United States v. Gilliam, 987 F.2d...
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