U.S. v. Shelton

• Citation: 400 F.3d 1325
• Decision Date: 25 February 2005
• Docket Number: No. 04-12602. Non-Argument Calendar.,04-12602. Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrance SHELTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

400 F.3d 1325

UNITED STATES of America, Plaintiff-Appellee, v. Terrance SHELTON, Defendant-Appellant.

No. 04-12602. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 25, 2005.

Humberto R. Dominguez (Court-Appointed), Miami, FL, for Defendant-Appellant.

Carol E. Herman, Anne R. Schultz, Asst. U.S. Atty., Laura Thomas Rivero, Miami, FL, for Plaintiff-Appellee.

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

Before CARNES, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

Terrance Shelton appeals his 190-month sentence, imposed after he pled guilty to drug and firearms offenses.

In his initial brief on appeal, Shelton timely raised the numerous issues we address in this case based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004), and now United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which we collectively refer to herein as the "Booker issues."

After review, we conclude there were no Sixth Amendment violations in Shelton's sentence under Booker. However, the district court erred under Booker in sentencing Shelton under a mandatory Guidelines regime, and Shelton has established a reasonable probability that the district court would have imposed a lesser sentence but for the mandatory Guidelines regime. Thus, for the reasons outlined in this opinion, we vacate Shelton's sentence and remand for resentencing under Booker.

I. BACKGROUND

A. Shelton's Guilty Plea

On July 17, 2003, Shelton was indicted for: (1) knowingly and intentionally distributing " at least five (5) grams" of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and 18 U.S.C. § 2 (counts 1, 2, and 4); (2) knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and 18 U.S.C. § 2 (counts 5 and 6); (3) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (counts 3, 7, and 10); (4) knowingly carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2 (count 9); and (5) knowingly possessing with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (count 12).¹

In a written plea agreement, Shelton pled guilty to the drug charge in count 4 and the firearms charge in count 9. During the plea colloquy under Rule 11, the district court explained that the mandatory minimum for the drug charge in count 4 was 10 years' imprisonment (120 months) and the maximum was life imprisonment. Shelton's three prior drug convictions increased Shelton's statutory, mandatory minimum sentence from 5 to 10 years' imprisonment and his statutory maximum penalty from 40 years' to life imprisonment. 21 U.S.C. § 841(b)(1)(B).² During the plea colloquy, the district court further explained that as to the firearm charge in count 9, Shelton would face a mandatory minimum sentence of 5 years' imprisonment (60 months) to run consecutively to his drug sentence for count 4.

Also during the plea colloquy, the government offered facts showing that Shelton and co-defendant Hunter sold drugs and two firearms to a confidential informant ("CI") under surveillance on June 23, 2003. According to the government's recitation of the facts, Shelton's drug transaction with the CI on that one day involved 16.7 grams of crack and 15 grams of cocaine powder. During the plea colloquy, Shelton agreed to the government's recitation of the facts. The district court then accepted Shelton's guilty plea as to counts 4 and 9, and the remaining counts in the indictment were dismissed on the government's motion.

B. The Presentence Report

The Presentence Investigation Report ("PSI") reported that Shelton had participated not only in the above drug offense on June 23, 2003, but also in two other drug transactions with the CI on June 18 and 20, 2003, respectively. The PSI also reported that, on June 26, 2003, an additional amount of drugs were found in a car abandoned by Shelton.

According to the PSI, Shelton's total drug quantity for sentencing purposes was 47 grams of crack cocaine and 87.2 grams of cocaine powder, which represented the total amount of drugs in these four events: (1) the offense conduct on June 23, 2003 that involved 16.7 grams of crack and 15 grams of cocaine powder; (2) the drug transaction on June 18, 2003 that involved 17.1 grams of crack transferred to a confidential informant; (3) the drug transaction on June 20, 2003 that involved 13.2 grams of crack transferred to a confidential informant; and (4) the 72.2 grams of cocaine powder recovered from a car abandoned by Shelton on June 26, 2003.

The PSI noted a marijuana equivalency of 957 kilograms for the total quantity of 47 grams of crack and 87.2 grams of cocaine powder. The marijuana equivalency corresponded to a base offense level of 30. See U.S.S.G. § 2D1.1(c)(5) (providing for base offense level of 30 when drug quantity is at least 700 but less than 1,000 kilograms of marijuana). Shelton filed no objection to the factual statements in the PSI that detailed his offense conduct and the above relevant conduct and drug quantities.

Shelton's PSI further recommended a two-level reduction for acceptance of responsibility and a one-level reduction for assistance to the government, resulting in an adjusted offense level of 27. Based on his prior convictions, the PSI noted that Shelton had 13 criminal history points, which corresponded to a criminal history category of VI. According to the PSI, the sentencing range for offense level 27 and criminal history category VI was 130-162 months' imprisonment for count 4, followed by a mandatory term of 60 months' imprisonment for count 9, to run consecutively with the term for count 4. Shelton did not object to any of the PSI's calculations.

C. Sentencing Hearing

At the sentencing hearing, Shelton again raised no objections to the factual statements in the PSI. When the district court inquired about the PSI, Shelton's counsel stated that he had reviewed the report with Shelton and that they did not dispute the factual matters. The district court then sentenced him to 130 months' imprisonment for count 4 and 60 months' imprisonment for count 9, to run consecutively.³

In sentencing Shelton, the district court expressed dissatisfaction with Shelton's sentence, but indicated the Sentencing Guidelines and the relevant statutes dictated the result. For example, the district court commented that Shelton's sentence was "very, very severe" due to Shelton's criminal history points and the mandatory, consecutive 5-year sentence on the § 924(c) firearms count.

The district court noted that "unfortunately" the Guidelines criminal-history calculation takes into account each of the defendant's past charges and does not take into account the fact that the sentences imposed on those charges were short as a result of such factors as the youth of the defendant or amount of drugs involved. The district court later expressed its disapproval of the severity of the sentence again, stating that Congress has taken a "very, very hard stance when it comes to guns and drugs." Most significantly for Shelton, the district court indicated that the most lenient sentence it could impose, a sentence at the low end of the Guidelines range, was "more than [was] appropriate in this situation."

II. STANDARD OF REVIEW

While Shelton's initial brief on appeal timely raised various Booker issues in this case, he did not raise these issues in the district court. Thus, our review is only for plain error. United States v. Rodriguez, 398 F.3d 1291, at 1297, 2005 WL 272952, at *6 (11th Cir. Feb.4, 2005). "An appellate court may not correct an error the defendant failed to raise in the district court unless there is: `(1) error, (2) that is plain, and (3) that affects substantial rights.'" Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002))." `If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. at 1785).

III. DISCUSSION

As noted above, on appeal, Shelton raises several Booker issues, which we address here.

A. Sentencing Enhancements

Shelton first argues that the district court erred when it enhanced his sentence based on a judicial fact-finding of drug quantity and based on his prior convictions. We readily dispense with that issue. The Supreme Court consistently has rejected Shelton's argument that a district court errs when it considers prior convictions in sentencing a defendant under the Guidelines. In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court "held that the government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence." United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (citation omitted). This conclusion was left undisturbed by Apprendi, Blakely, and Booker.

Moreover, in Booker, the Supreme Court reaffirmed its holding in Apprendi. See Booker, 125 S.Ct. at 756 (opinion of Stevens, J.) (reaffirming that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt" (emphasis added)). Thus, a district court does not err by relying on prior convictions to enhance a defendant's sentence.⁴

Nor did the...