U.S. v. Sullivan

• Citation: 455 F.3d 248
• Decision Date: 11 July 2006
• Docket Number: No. 03-4601.,No. 03-4610.,03-4601.,03-4610.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sean Thomas SULLIVAN, a/k/a Rico, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Kenneth Adrian Campbell, a/k/a Kenny, a/k/a Kac, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 248

455 F.3d 248

UNITED STATES of America, Plaintiff-Appellee, v. Sean Thomas SULLIVAN, a/k/a Rico, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Kenneth Adrian Campbell, a/k/a Kenny, a/k/a Kac, Defendant-Appellant.

No. 03-4601.

No. 03-4610.

United States Court of Appeals, Fourth Circuit.

Argued October 25, 2005.

Decided July 11, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Rosemary Curran Scapicchio, Boston, Massachusetts; Kathrine Haggard Hudgins, Columbia, South Carolina, for Appellants. Robert Hayden Bickerton, Assistant United States Attorney, Office of the United States Attorney, Charleston, South Carolina, for Appellee.

ON BRIEF:

Edwin W. Rowland, Hilton Head Island, South Carolina, for Appellant Sean Thomas Sullivan. J. Strom Thurmond, Jr., United States Attorney, Nancy C. Wicker, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Before WIDENER, KING, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published PER CURIAM opinion in which all judges of the panel concurred. Judge WIDENER wrote a concurring and dissenting opinion. Judge KING wrote a concurring opinion, in which Judge DUNCAN joined.

OPINION

PER CURIAM:

Pursuant to the following opinions of Judge Widener and Judge King, the convictions of the defendants are hereby affirmed, and their sentences are hereby vacated. Judge Widener's opinion in these appeals, to the extent that it affirms the convictions of the defendants, is joined by Judge King and Judge Duncan. Judge King's separate opinion, which agrees with the result reached by Judge Widener as to Sullivan's sentence, but for different reasons, addresses the sentencing issues only, vacates both defendants' sentences, and remands for resentencing. It is joined by Judge Duncan. Judge Widener agrees in the result reached by Judge King as to Sullivan's sentence, but for the reasons expressed in his opinion. He dissents from Judge King's opinion and the result there reached as to the sentencing of Campbell.

The convictions of Sean Thomas Sullivan and Kenneth Campbell are thus affirmed, their separate sentences are vacated, and these cases are remanded to the district court for such other and further sentencing proceedings as may be appropriate.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

WIDENER, Circuit Judge, concurring and dissenting:

This case presents the consolidated appeals of defendants Sean Thomas Sullivan and Kenneth Adrian Campbell. Sullivan and Campbell were convicted on a number of charges related to their involvement in a criminal drug conspiracy to distribute cocaine base, commonly known as crack, which took place in and near Beaufort County, South Carolina.

Both Sullivan and Campbell appeal their convictions. While their appeals were pending, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that the United States Sentencing Guidelines were advisory rather than mandatory, and that facts used to enhance a defendant's sentence must be found by a jury or admitted by the defendant by way of guilty plea or otherwise. Sullivan and Campbell added a Booker claim to their appeals and filed supplemental briefs. We affirm the convictions. We vacate Sullivan's sentence and remand for resentencing, I for reconsideration in light of United States v. Booker and United States v. White, 405 F.3d 208 (4th Cir.2005), Judge King and Judge Duncan for reasons expressed in Judge King's separate opinion. I would affirm Campbell's sentence, Judge King and Judge Duncan would vacate and remand that also for the reasons expressed in Judge King's separate opinion.

I.

This case revolves around a drug conspiracy in and near Beaufort County, South Carolina that existed from 1996 through July 2001. During this period, the defendants and others cooperated with Campbell to take over the distribution of crack cocaine in that neighborhood.

The conspiracy unraveled when law enforcement agents were able to make a number of undercover purchases of crack cocaine from several of the conspirators, including Sullivan. Sullivan was arrested at or near the last of these transactions, and arresting officers then discovered a 9mm Glock pistol on his person. This pistol had had some of its serial numbers, including the primary one on the frame of the pistol, removed.

The 49-count Third Superseding Indictment, which was the one brought to trial, was filed on July 12, 2001. This indictment named 11 people, including the two defendants in the present appeal, as members of the crack distribution conspiracy.

Of the various charges in the indictment, Campbell was convicted of Count 1 with conspiracy to possess with intent to, and to distribute, 50 grams or more of crack, and in Count 49 with conspiring to possess firearms in furtherance of the drug trafficking crime set forth in Count 1 of the indictment.

Sullivan was likewise convicted of counts 1 and 49. Additionally, Sullivan was convicted of Counts 29, 30 and 31 with the distribution of less than five grams of cocaine base, of Count 32 with the possession, with intent to distribute, more than five grams of crack, of Count 34 with using and carrying a firearm in relation to a drug trafficking crime; and of Count 35 with possession of a firearm with an obliterated serial number. Sullivan was eventually convicted of Counts 1, 29, 30, 31, 32, 34, 35, and 49.

The trial of the defendants, along with seven of their co-defendants, began on August 13, 2001, and testimony concluded on August 29, 2001. The jury found both Campbell and Sullivan guilty on September 15, 2001.

At trial, many of the witnesses were members of the conspiracy who had agreed to plead guilty and were cooperating with the government in exchange for reduced sentences. These witnesses provided testimony regarding the supplier-dealer organization and other details of operation of the conspiracy, the identities of other conspirators, including Campbell, and similar information. When eliciting this testimony, the government introduced into evidence the agreements it had made with these witnesses.

On March 4 and March 5, 2003, the district court held a sentencing hearing and found that Sullivan and Campbell had participated in the February 1999 murders of Toby Bing and Elshawndra Jones.

The district court imposed life sentences on both defendants on July 15, 2003. The court determined that Campbell's drug crime involved 1,858 grams of crack cocaine. Additionally, the court imposed a sentencing enhancement for the murders of Bing and Jones. Finally, the district court applied a four level enhancement, finding that Campbell was a leader of the drug distribution ring.

Similarly, in sentencing Sullivan, the district court relied at least partially upon the testimony at sentencing to apply the murder cross-reference. Additionally, the district court determined that Sullivan was responsible for the distribution of 720 grams of crack. These enhancing facts were not determined by the jury at trial.

Sullivan argues that the government failed to produce sufficient evidence to sustain the drug conspiracy and other charges against him. Additionally, while the appeal was pending, the Supreme Court decided United States v. Booker. Due to the effect of that case on this appeal, the parties filed supplemental briefing on the effect of Booker on their sentences.

II.

A.

The federal Sentencing Guidelines were adopted in order to bring more uniformity and predictability to criminal sentences. The Guidelines assigned a numerical value, called the base offense level, to each criminal offense, and, as well, assigned the defendant to one of six criminal history categories. Additionally, the base offense level could be adjusted upward or downward based upon findings made by the court at sentencing.

As stated, the Supreme Court decided United States v. Booker, which held that mandatory application of the Sentencing Guidelines was unconstitutional, as that application violated the defendants' Sixth Amendment right to have the facts upon which a sentencing was based to be found beyond a reasonable doubt by a jury when it exceeded the sentence which might have been awarded upon only the jury verdict. We have determined that in the ordinary case the proper application of Booker is to affirm sentences that are within the statutorily prescribed range and are reasonable, United States v. Hughes, 401 F.3d, 540, 546-47 (4th Cir.2005); and to vacate and remand mandatory guideline sentences when the guideline range involves extraverdict enhancement. White, 405 F.3d at 222.

B.

There follows an analysis of Campbell's and Sullivan's eligibility for sentencing in view of the jury verdict and without other fact-finding by the court except previous convictions.

Campbell was convicted under Count 1, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and § 846 of a conspiracy to distribute more than 50 grams of cocaine base. Because the jury did not determine the quantity beyond that contained in the indictment, under Booker we use only 50 grams in basic calculation of his sentence. This would result in a base offense level of 32 under USSG § 2D1.1(c)(4).¹ Campbell's firearms conspiracy conviction in count 49, 18 U.S.C. § 924(o), carries a base offense level of 24 under USSG § 2K2.1(a)(2) because, according to the presentence report, he has at least two qualifying prior convictions.

Additionally, Campbell had a number of prior criminal convictions, including criminal sexual conduct with a minor and accessory after the fact to robbery, which are felonies and crimes of violence under the definition in USSG § 4B1.2. These convictions are sufficient to qualify him as a career offender under USSG § 4B1.1.² As a career offender, Campbell receives a base offense level for his crime that is determined by reference to the statutory maximum for the offense of conviction. The statutory maximum for his...