U.S. v. Taylor

• Decision Date: 28 June 2005
• Docket Number: No. 04-6174.,04-6174.
• Citation: 413 F.3d 1146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marshell Cantrell TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

413 F.3d 1146

UNITED STATES of America, Plaintiff-Appellee, v. Marshell Cantrell TAYLOR, Defendant-Appellant.

No. 04-6174.

United States Court of Appeals, Tenth Circuit.

June 28, 2005.

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Paul Antonio Lacy, Assistant Federal Public Defender (Teresa Brown, Assistant Federal Public Defender, with him on the brief), Office of the Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Scott L. Palk, Assistant United States Attorney (Robert G. McCampbell, United States Attorney with him on the brief), Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Before KELLY, McWILLIAMS, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Marshell Cantrell Taylor, pursuant to a plea agreement, pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and waived his right to appeal his sentence. During sentencing, the district court made findings of fact that enhanced Taylor's sentence under the United States Sentencing Guidelines. Taylor appealed his sentence, and while it was pending the Supreme Court handed down Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Taylor argues his appeal is valid because one of the exceptions to his waiver of appellate rights applies—that he can appeal based on "changes in the law reflected in Tenth Circuit or Supreme Court cases decided after the date of this agreement." Assuming he can pursue his appeal, Taylor also argues the district court violated Booker by (1) making findings of fact at sentencing, and then (2) misapplying the facts to the Guidelines' enhancement for possession of a firearm in connection with a drug offense. Finally, during oral argument Taylor asserted the district court violated the Supreme Court's recent holding in Shepard v. United States, 544 U.S. ___, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (issued three days before oral argument), when it determined he was subject to a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), as a result of three prior convictions for violent felonies.

Taking jurisdiction pursuant to 28 U.S.C. § 1291, we hold Taylor can pursue this appeal because the appeal waiver does not apply to the Supreme Court's newly announced sentencing cases. We conclude Taylor cannot demonstrate the district court plainly erred when it enhanced his sentence based on a finding he possessed a firearm in connection with a controlled substance offense. As to the applicability of Shepard, however, the record does not demonstrate the basis for the district court's determination that Taylor had committed three prior violent felonies. We therefore remand so the district court can review the evidence of prior convictions in light of Shepard.

I. FACTUAL AND PROCEDURAL BACKGROUND

Beginning in May 2003, police in Norman, Oklahoma, working in cooperation with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), conducted an undercover investigation of Taylor. During the investigation, police made several undercover purchases of drugs and guns from Taylor. Of importance to this appeal is one specific incident. On June 16, 2003, an undercover officer contacted Taylor by phone seeking drugs. Taylor stated he did not have enough money to buy drugs from his supplier and, accordingly, could not sell any to the undercover officer. Taylor did, however, have a .357 Ruger pistol. Eventually, the conversation resulted in Taylor agreeing to (1) sell the undercover officer the pistol for $250; (2) use the money to purchase drugs from his supplier; and (3) turn around and sell the drugs to the undercover officer.

On the morning of June 17 the undercover officer purchased the Ruger from Taylor for $250. Later that same day, Taylor sold the undercover officer 3.9 grams of cocaine base for $300. After the transaction completed, officers arrested Taylor.

Subsequent to his arrest but before his indictment, Taylor agreed to plead guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The plea agreement Taylor signed indicated that the "maximum penalty that could be imposed as a result of this plea is not more than 10 years imprisonment...." The agreement, however, noted that "Defendant acknowledges and understands that the Court is not bound by, nor obligated to accept any stipulations, agreements or recommendations of the United States or defendant." The agreement also contained a waiver of appellate rights. That waiver, though, contained two explicit exceptions allowing Taylor to bring an appeal based on (1) "an upward departure from the sentencing guideline range determined by the Court," or (2) "changes in the law reflected in Tenth Circuit or Supreme Court cases decided after the date of this agreement that are held by the Tenth Circuit or Supreme Court to have retroactive effect."

During sentencing, the judge examined and adopted the findings of the pre-sentencing report (PSR) and heard testimony from an ATF agent familiar with the case. The PSR chronicled Taylor's extensive criminal history. The judge found three of Taylor's prior convictions were violent felonies for purposes of the ACCA and that the ACCA applied. As a result, the statutory minimum sentence Taylor could receive was 15 years imprisonment. See 18 U.S.C. § 924(e). In addition, the judge enhanced Taylor's base offense level by finding he possessed a firearm in connection with a controlled substance offense, see USSG § 4B1.4(b)(3)(A), i.e., possession with intent to distribute and distribution of drugs. The court concluded Taylor's total offense level was 31, which, with his criminal history, subjected him to a sentence of 188 to 235 months.

Taylor objected to the application of the ACCA and to the enhancement for possession of a firearm in connection with a controlled substance offense. The judge overruled Taylor's objections. Before the judge announced Taylor's sentence, Taylor apologized to the court for his crimes and his attorney requested the court sentence Taylor at the low end of the Guidelines because he had to support his family and did not want to spend a long time away from his children. After considering the PSR, the agent's testimony, and Taylor's statements, the judge sentenced Taylor near the high end of the Guidelines range, 230 months. The judge based the sentence "on the fact that the circumstances here show a wide range of serious criminal activity being conducted immediately prior to the arrest ... [a]nd that recidivism I think is an additional factor I think suggesting a need to protect the public from further crimes." [App. Vol. II, p. 25-26.].

On May 24, 2004, Taylor appealed. The Supreme Court decided Blakely on June 24, 2004 and Booker on January 12, 2005.

II. ANALYSIS

A. TAYLOR'S APPEAL WAIVER

In cases such as this where a defendant waived his appellate rights pursuant to a plea agreement, we must first determine whether the defendant can appeal his sentence notwithstanding the appellate waiver. See United States v. Hahn, 359 F.3d 1315, 1321-25 (10th Cir. 2004) (en banc). To do this, we examine "(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice as we define herein." Id. at 1325. When construing an appellate waiver, we apply "well-established contract principles" and examine the plain language of the plea agreement. United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. May 3, 2005). In addition, we strictly construe "the scope of [the] appellate waiver[ ] and [interpret] any ambiguities ... against the Government and in favor of a defendant's appellate rights." Id. (quotations and citation omitted).

In the present case, we need look only at the language of the appellate waiver itself to satisfy ourselves that Taylor can appeal his sentence.¹ The appellate waiver contained an explicit exception that provides:

[Taylor's] waiver of rights to appeal and bring collateral challenges shall not apply to appeals or challenges based on changes in the law reflected in Tenth Circuit or Supreme Court cases decided after the date of this agreement that are held by the Tenth Circuit or Supreme Court to have retroactive effect.

Thus, the question in this case is whether Blakely and Booker changed the law in this circuit regarding sentencing. We think they did.

To begin with, Blakely and Booker extended Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to sentencing matters by finding that a defendant's Sixth Amendment rights are violated if any fact that increases the penalty for a crime beyond the statutory maximum is not admitted or proved beyond a reasonable doubt. See generally Blakely, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The statutory maximum "is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537 (emphasis deleted); see also Booker, 125 S.Ct. at 749; United States v. Price, 400 F.3d 844, 847 (10th Cir.2005). The Court in Booker consequently found the Guidelines unconstitutional but remedied their infirmity by making them advisory rather than mandatory. See Booker, 125 S.Ct. at 750.

As a result of these Supreme Court rulings, the law in this circuit has been changed with regard to sentencing. Before Blakely and Booker, the sentencing judge was required to enhance Taylor's sentence under the Guidelines for possessing a firearm in connection with another offense. Now, however, the sentencing judge is not required to mandatorily apply the...