U.S. v. Smith, 04-3461.

• Decision Date: 06 September 2005
• Docket Number: No. 04-3461.,No. 04-3747.,04-3461.,04-3747.
• Parties: UNITED STATES of America, Appellee, v. Mendoor Lamont SMITH, Appellant. United States of America, Appellee, v. Darrian Deangelis Jordan, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.3d 715

UNITED STATES of America, Appellee, v. Mendoor Lamont SMITH, Appellant.

United States of America, Appellee, v. Darrian Deangelis Jordan, Appellant.

No. 04-3461.

No. 04-3747.

United States Court of Appeals, Eighth Circuit.

Submitted: June 21, 2005.

Filed: September 6, 2005.

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John J. Bishop, argued, Cedar Rapids, Iowa, for Smith.

Mark E. Meyer, argued, Cedar Rapids, Iowa, for Jordan.

Richard L. Murphy, Assistant U.S. Attorney, Cedar Rapids, Iowa (Stephanie M. Rose, on the brief), for appellee.

Before MELLOY, HEANEY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Mendoor Lamont Smith ("Smith") pled guilty to possession with intent to distribute 36.1 grams of marijuana within 1,000 feet of a protected location after having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 851 and 860. Smith challenges the district court's¹ categorization of his prior conviction for the reckless use of a firearm, in violation of Iowa Code § 724.30, as a crime of violence. Darrian Deangelis Jordan ("Jordan") pled guilty to possession with intent to distribute 112.48 grams of cocaine base within 1,000 feet of a protected location after having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 851 and 860. Jordan appeals the district court's denial of his motion to withdraw his plea of guilty. He also challenges the failure of the Government to move for and the district court to grant a one-level reduction for acceptance of responsibility under U.S. Sentencing Guidelines Manual § 3E1.1(b). Finally, Jordan argues that his Sixth Amendment rights were violated when the district court made findings of fact regarding his criminal history and that his sentence is unreasonable in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm.

I. BACKGROUND

On November 13, 2003, a confidential informant reported that Smith and Jordan were selling narcotics in Waterloo, Iowa. Officers executing a search warrant at Smith and Jordan's house discovered marijuana, cocaine, cocaine base, a digital scale and $12,310 in cash. Jordan arrived home as the search of his house was about to commence. A search of his person netted $410 in cash and two mobile phones. Smith arrived shortly thereafter. He was witnessed turning away from the house and discarding a baggie, which was later discovered to contain marijuana, under a car. Law enforcement officers called Smith's name, and he returned to the house. A search of his person netted $260 in cash and additional marijuana.

After arraignment, trial deadlines were established pursuant to the district court's Trial Scheduling and Management Order ("standing scheduling order"). The standing scheduling order required that pretrial motions be filed by March 1, 2004. If either defendant wished to qualify for a full three-level reduction for acceptance of responsibility under § 3E1.1, the standing scheduling order required notification by March 8, 2004 of intention to plead guilty ("notification deadline"). A guilty plea would then have to be entered by March 15, 2004.

Smith and Jordan filed motions to suppress evidence on March 1, 2004, the deadline for filing pretrial motions. A hearing on the motions to suppress evidence was set for March 16, 2004. On the date notification of intention to plead guilty was due, March 8, 2004, Smith and Jordan each filed motions seeking a continuance of the notification deadline. Both argued that a continuance was appropriate because the motions to suppress were still pending. The next day, March 9, 2004, the district court denied the motions to continue, but informed the defendants that they had "the option of entering a conditional plea in order to continue to pursue [their] motion[s] to suppress." United States v. Jordan, et al., 2004 WL 515913 (N.D.Iowa 2004). Jordan immediately asked the district court to reconsider, which it did on March 11, 2004, when again it denied the motion to continue the notification deadline.

A magistrate judge heard the motion to suppress evidence on March 16, 2004. That same day, the magistrate judge entered a report and recommendation to deny the motions to suppress evidence.

While the magistrate judge's report and recommendation was pending before the district court, Smith filed a Notice Regarding Entry of a Plea of Guilty and Consent to Proceed Before a Magistrate Judge. He then pled guilty to possession with intent to distribute 36.1 grams of marijuana within 1,000 feet of a protected location after having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 851 and 860. At sentencing, the district court found that Smith qualified as a career offender under U.S.S.G. § 4B1.1 because he had at least two prior felony convictions for a controlled substance offense or a crime of violence. These included a prior conviction for the crime of violence of reckless use of a firearm and two prior convictions for controlled substance offenses. After the district court granted Smith a three-level reduction for acceptance of responsibility, he faced a total offense level of 29 and a criminal history category of VI. Based on a guidelines range of 151 to 188 months, the district court sentenced Smith to 151 months' imprisonment. Anticipating that the guidelines might be held unconstitutional, the district court also imposed an alternative sentence of 151 months' imprisonment based on its discretion after considering the factors set forth in 18 U.S.C. § 3553(a).

On March 29, 2004, the district court accepted without objection the magistrate judge's report and recommendation to deny the motions to suppress. Two days later, Jordan filed his own Notice Regarding Entry of a Plea of Guilty and Consent to Proceed Before a Magistrate Judge. Jordan then pled guilty to possession with intent to distribute 112.48 grams of cocaine base within 1,000 feet of a protected location after having been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 851 and 860. The district court accepted the plea of guilty on April 22, 2004. However, on July 12, 2004, Jordan filed a motion to withdraw his plea of guilty. This motion was denied on July 18, 2004, and Jordan was sentenced on October 29, 2004.

At sentencing, the district court found that Jordan also qualified as a career offender under U.S.S.G. § 4B1.1 and calculated an offense level of 37. The district court then granted a two-level reduction for acceptance of responsibility. The Government did not move for the additional level of reduction for acceptance of responsibility, and Jordan did not object to the Government's failure to do so. With a total offense level of 37 and a criminal history category of VI, the district court imposed a sentence of 292 months based on a sentencing range of 292 to 365 months. The district court then imposed an alternative sentence of 292 months based on its discretion after considering the factors set forth in § 3553(a).

Smith appeals his sentence, challenging his categorization as a career offender under § 4B1.1. He argues that the reckless use of a firearm, in violation of Iowa Code § 724.30, is not a crime of violence as defined by U.S.S.G. § 4B1.2 and that his second controlled substance conviction is not sufficiently separated in time from his first controlled substance conviction to qualify as a distinct offense. Smith also argues that the district court violated the Sixth Amendment when it categorized reckless use of a firearm as a crime of violence.

Jordan appeals the district court's denial of his motion to withdraw his plea of guilty, arguing that his desire to preserve his right to appeal the adverse ruling on his suppression motion is a fair and just reason for withdrawing his guilty plea and that his plea of guilty was coerced or otherwise rendered involuntary by the district court's standing scheduling order. He also appeals his sentence, challenging the failure of the Government to move for and the district court to grant the § 3E1.1(b) additional level of reduction for acceptance of responsibility. Further, Jordan argues that a jury must find beyond a reasonable doubt that he had committed the predicate offenses that resulted in his classification as a career offender and that his sentence is unreasonable because he did not obtain the § 3E1.1(b) reduction, the district court applied the guidelines in a mandatory fashion and the district court failed to state its reasons for imposing an alternative discretionary sentence.

II. DISCUSSION

A. Mendoor Lamont Smith

Smith first challenges the district court's finding that he qualifies as a career offender under U.S.S.G. § 4B1.1. "A defendant is a career offender if . . . the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense [and] the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a) (2003). The first predicate felony conviction relied upon by the district court, a controlled substance offense in violation of Iowa Code § 124.401(1)(c), is not in dispute. The district court determined that the second predicate offense could be either the second controlled substance conviction arising out of Smith's first controlled substance conviction or Smith's conviction for the reckless use of a firearm, which it determined to be a crime of violence as defined by § 4B1.2. Smith argues that the second controlled substance offense was not a separate conviction for purposes of U.S.S.G. § 4A1.2(a)(2) and that the reckless use of a firearm is not a crime of violence. In order to overturn his classification as a career criminal, Smith must succeed on both accounts. However, because we affirm the district court's...