U.S. v. Milan
| Decision Date | 10 February 2005 |
| Docket Number | No. 02-6245.,No. 02-6302.,02-6245.,02-6302. |
| Citation | 398 F.3d 445 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James Sylvester MILAN, Jr. (02-6245) and Sharn Raynard Milan (02-6302), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON BRIEF: M. Dianne Smothers, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, Robert C. Brooks, Memphis, Tennessee, for Appellants. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.
Before: KEITH and CLAY, Circuit Judges; O'MEARA, District Judge.*
Defendants, James Sylvester Milan, Jr. and Sharn Raynard Milan, appeal from the judgments issued by the United States District Court for the Western District of Tennessee, entered on September 11, 2002, and September 24, 2002, respectively, finding Defendants guilty of conspiracy to possess with intent to distribute and distribution of fifty grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846. For the reasons set forth below, as to Sharn Raynard Milan, we VACATE the district court's judgment and REMAND the case for re-sentencing; and, as to James Sylvester Milan, Jr., we AFFIRM the district court's judgment.
A federal grand jury returned an indictment on July 16, 2001. A superseding indictment was filed on October 15, 2001, charging Defendants with conspiracy to possess with intent to distribute and distribution of fifty grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) () and § 846 (conspiracy).
On October 2, 2001, a plea agreement for Sharn Raynard Milan ("Sharn") was entered. On October 10, 2001, a plea agreement for James Sylvester Milan, Jr. ("James") was entered.
On September 11, 2002, judgment was entered, finding James guilty of the conspiracy and sentencing him to a term of 135 months. On September 24, 2002, judgment was entered, finding Sharn guilty of the conspiracy and sentencing him to a term of 264 months. After entry of judgment, each Defendant filed a timely notice of appeal. On June 24, 2004, pursuant to the government's motion for a reduction in Sharn's sentence for substantial assistance, see FED. R. CRIM. P. 35(b), the district court reduced Sharn's sentence to 188 months.
The Presentence Investigation Reports of James and Sharn offer identical accounts of the substantive facts, stating that a confidential informant ("CS-2") had indicated
that Sharn Raynard Milan and Stephen Dorrell Milan were major distributors of crack cocaine in Trenton, Tennessee, and that James Sylvester Milan, Jr. and Andre Anderson were selling crack cocaine for them.... CS-2 provided information that led to the introduction of a Drug Task Force undercover agent to members of Sharn Raynard Milan's organization. During the course of this investigation, CS-2 participated in several controlled purchases of crack cocaine involving Andre Anderson, Sharn Raynard Milan, and James Sylvester Milan, Jr....
Undercover agents arranged and executed numerous purchases of crack cocaine from Defendants. On August 6, 1999, another confidential informant ("CS-1") arranged a purchase from Sharn of a quantity of crack cocaine that was later measured to be 67.5 grams. On later dates, CS-2 arranged by phone to purchase crack cocaine from Anderson; then, CS-2 — equipped with a listening device and accompanied by an undercover agent — went to Anderson's residence and completed these purchases of crack cocaine.
On September 20, 2000, with an agent listening to the call, CS-2 arranged by phone to purchase crack cocaine "from Sharn Raynard Milan through James Sylvester Milan, Jr." (J.A. at 137, 181.) Then, Agent Eric Holmes and "CS-2 entered James Sylvester Milan, Jr.'s residence ... and in their own vehicle subsequently followed a vehicle driven by James Sylvester Milan, Jr. to the residence of Sharn Raynard Milan ... where James Sylvester Milan, Jr. entered the vehicle driven by Agent Holmes and CS-2." (J.A. at 137, 181.) CS-2 and Agent Holmes purchased from James a quantity of crack cocaine that was later measured to be 22.4 grams.
On September 25, 2000, at Sharn's residence, undercover agents purchased from James a quantity of crack cocaine that was later measured to be 71.0 grams; during the purchase, "James Sylvester Milan, Jr. went into the residence and Sharn Raynard Milan came outside and looked at the agent." (J.A. at 137, 181.) On October 4, 2000, an undercover agent purchased a quantity of crack cocaine that was later measured to be 70.7 grams from James at Sharn's residence; during the purchase, "[t]he undercover agent observed James Sylvester Milan, Jr. walk over to Sharn Raynard Milan and receive a package from him"-the package contained the crack cocaine. (J.A. at 138, 182.) In the course of these arrangements, an incident occurred in which James came uninvited to CS-2's residence and accused CS-2 of being a federal agent; CS-2 believed that James had a firearm in his pocket, due to James's gestures.
On July 16, 2001, a federal grand jury indicted Sharn and James. A superseding indictment was filed on October 15, 2001, charging Defendants with conspiracy to possess with intent to distribute and distribution of fifty grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1) () and § 846 (conspiracy). On October 2, 2001 and October 10, 2001, respectively, Sharn and James pled guilty.
On September 6, 2001, Sharn gave a proffer statement to agents, admitting to having sold cocaine on various occasions. On September 19, 2001, James gave a proffer statement to agents, stating, inter alia, that Sharn was his first cousin and describing both his own role and Sharn's role in crack cocaine distribution.
Defendants initially raised four arguments in this case. Sharn argued, first, that his rights under U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 1B1.8 were violated when his sentence was calculated based on drug amounts referred to in his proffer statements and those of his co-defendants; second, that the offense level was improperly increased for possession of a firearm during the offense, pursuant to U.S.S.G. § 2D1.1; and, third, that the offense level was improperly increased for a leadership or organizer role, pursuant to U.S.S.G. § 3B1.1(a). Finally, James argued that the district court erred in using the proffer statements of his co-defendants to calculate his offense level, in violation of U.S.S.G. § 1B1.8.
However, on June 24, 2004, after briefs were filed in this appeal, the Supreme Court issued its decision in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in which the Court invalidated the state of Washington's determinate sentencing system on Sixth Amendment grounds. In response to Blakely, Sharn and James moved for leave to file supplemental briefs on the Sixth Amendment implications of their sentencing determinations. We have reviewed the defendants' supplemental briefs as well as the government's responses. Now, with the Supreme Court's ruling in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), to guide us, we conclude that Sharn's case must be remanded for re-sentencing. As to James, we conclude that his sentencing determination was proper, even in light of Booker. However, these holdings do not completely dispose of the case. Defendants' claim that the district court failed to comply with U.S.S.G. § 1B1.8 remains for us to consider. We do so infra at Part III of this opinion, where we hold that (1) § 1B1.8 remains binding on the district courts after Booker; and (2) the district court did not violate § 1B1.8 in this case because in determining Defendants' sentences it considered only the proffer statements of the co-defendants, not those of Defendants themselves. In determining Sharn's sentence on remand, therefore, while the district court is bound by Booker's instruction that its sentencing determination be "reasonable" and by Congress's command that the sentence not exceed the statutory maximum,1 the court is free to consider the proffer statements of Sharn's co-defendants. As to James, we hold that his sentence is consistent with the Sixth Amendment and with § 1B1.8 of the Guidelines and therefore affirm the judgment of the district court.
We turn now to the Sixth Amendment claims of each defendant.
Sharn pled guilty to conspiracy to possess with intent to distribute and distribution of fifty grams or more of a mixture or substance containing cocaine base. Sharn made no further factual admissions beyond those implicit in his guilty plea. At Sharn's September 24, 2002 sentencing hearing, the district court determined that the base offense level was 38 because the Presentence Investigation Report ("PIR") attributed at least 1.5 kilograms of crack cocaine to Sharn. See U.S.S.G. § 2D1.1(c)(1). Next, the court applied a 2-level enhancement under § 2D1.1(b)(1) on the strength of the government's allegation that Sharn possessed a firearm during the commission of the offense to which he pled. The court then applied a 4-level enhancement under § 3B1.1(a) because it found that Sharn "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Id. The court then proceeded to reduce Sharn's offense level — which then stood at 44 — as follows: First, the court applied a 3-level reduction for acceptance of responsibility. Second, the court granted the government's motion under § 5K1 and applied a further 4-level reduction, agreeing with the government that Sharn had provided substantial assistance. When all modifications were...
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