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In re Sealed Case

January 16, 2009

IN RE: SEALED CASE


Appeal from the United States District Court for the District of Columbia, (No. 04cr00390).

The opinion of the court was delivered by: Edwards, Senior Circuit Judge

Argued September 16, 2008

Before: BROWN, Circuit Judge, and EDWARDS and SILBERMAN, Senior Circuit Judges.

Concurring Statement filed by Senior Circuit Judge EDWARDS, with whom Senior Circuit Judge SILBERMAN joins.

Dissenting opinion filed by Circuit Judge BROWN.

Appellant pled guilty to maintaining a crack house, in violation of 21 U.S.C. § 856(a)(2), and to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced him to a 97-month term of imprisonment under U.S.S.G. § 2D1.8(a)(1), a provision of the United States Sentencing Guidelines ("Guidelines") that imposes a substantially higher base offense level for persons convicted of maintaining a drug establishment who are also found to have participated in the underlying drug crime.

Appellant now challenges this sentence, arguing both that the District Court erred in applying § 2D1.8(a)(1) to calculate his base offense level, because there was insufficient evidence in the record that he actually "participated" in the underlying drug offense, and that his sentence is substantively unreasonable. In addition, appellant requests that we remand his case for resentencing in light of recent amendments to the Guidelines that decrease the base offense levels for certain crack cocaine offenses.

The parties suggest that, because he never objected to the District Court that the evidence was insufficient to support its reliance on § 2D1.8(a)(1), appellant's claim on appeal must be reviewed only for plain error under United States v. Olano, 507 U.S. 725 (1993), and its progeny. We need not reach this issue, because the District Court in this case made no findings on appellant's participation in the underlying drug offense. The Presentence Investigation Report ("PSR") contained no factual findings on appellant's participation in the underlying drug offense; the trial judge offered no findings on this crucial issue; and appellant's participation cannot be inferred from the sparse record under review on appeal. In these circumstances, we are constrained to remand the case to allow the District Court to determine in the first instance whether the Government carried its burden at sentencing and proved participation by a preponderance of the evidence. See Pullman-Standard v. Swint, 456 U.S. 273, 291-92 & n.22 (1982) (remand appropriate where district court altogether fails to make findings or fails to make findings with respect to a material issue).

On remand, if appellant files a motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence, the District Court should also consider in the first instance the applicability of the recent amendments to the Guidelines relating to base offense levels for crack cocaine offenses. Finally, because we remand for resentencing, we do not reach appellant's challenge to the substantive reasonableness of his sentence.

I. BACKGROUND

On August 30, 2004, appellant was charged by information with maintaining a crack house, in violation of 21 U.S.C. § 856(a)(2), and with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On September 13, 2004, appellant pled guilty to both counts pursuant to a written plea agreement.

The proffer of facts supporting appellant's guilty plea is simple and straightforward. On June 4, 2003, officers of the Metropolitan Police Department executed a search warrant at an apartment leased by appellant. Though appellant shared the apartment with his co-defendant, the two men had separate bedrooms. Upon entering the apartment, the officers found the co-defendant trying to step into the closet of his bedroom. The officers' search of the co-defendant's bedroom closet revealed 35.3 grams of crack cocaine, a loaded Ruger .40 caliber semiautomatic handgun, $676 in cash, a digital scale, identifying documents, mail, a wallet, and a white plate with white rock residue. In the dining room of the apartment, the officers found a Pyrex measuring cup containing a white substance and a box of rubber gloves. In appellant's bedroom, the officers found a triple-beam scale, a loaded Beretta 9-mm semiautomatic handgun, a box of 9-mm ammunition, 63.25 grams of marijuana, empty Ziploc bags, and Ziploc bags containing green, weed-like material. A search of appellant turned up $545 in cash. Appellant's fingerprints were later lifted from the plate with the white rock residue found in his co-defendant's bedroom closet.

At the plea hearing, appellant admitted that the factual proffer was accurate. He also admitted that he knew that crack was present in his apartment and that he allowed the crack to be stored there. Plea H'rg Tr. at 30 (Sept. 13, 2004), reprinted in Appellant's Appendix ("App.") at Tab 1.

Relying on the 2005 edition of the United States Sentencing Commission Guidelines Manual, the PSR prepared by the probation office calculated appellant's base offense level under U.S.S.G. § 2D1.8(a), the section of the Guidelines that governs convictions for maintaining a drug establishment under 21 U.S.C. § 856(a)(2). For a defendant who also participated in the underlying drug offense, § 2D1.8(a)(1) advises the sentencing court to use the offense level for the relevant drug type and quantity from U.S.S.G. § 2D1.1. See U.S.S.G. § 2D1.8(a)(1). The guideline further advises that the offense level from § 2D1.1 should be reduced by four levels and capped at level 26 if the defendant "had no participation in the underlying controlled substance offense other than allowing use of the premises." U.S.S.G. § 2D1.8(a)(2). Although the PSR contained no factual findings on appellant's participation in the underlying drug offense, it applied § 2D1.8(a)(1) and recommended a base offense level of 30. See U.S.S.G. § 2D1.1(c)(5) (prescribing base offense level of 30 for at least 35 grams of cocaine base). The PSR recommended increasing the offense level by two levels under § 2D1.1(b)(1), because appellant possessed a gun in connection with a drug offense. The PSR also recommended a two-level decrease for acceptance of responsibility under U.S.S.G. § 3E1.1(a), resulting in a total offense level of 30. Given appellant's criminal history category of III, the applicable Guidelines range was 121 to 151 months. After reviewing the PSR, appellant's counsel filed several sentencing memoranda with the District Court, in which he requested that appellant's offense level be determined in accordance with the Guidelines for powder cocaine, rather than by applying the 100-to-one drug quantity ratio between crack and powder cocaine then prescribed by § 2D1.1.

At the April 19, 2006 sentencing hearing, the District Court accepted the PSR. See Sentencing H'rg Tr. at 4-5, 32-33 (Apr. 19, 2006), App. at Tab 2. However, the District Court made no mention of § 2D1.8(a)(1) and made no factual findings on appellant's participation in the underlying drug offense. Instead, the trial judge offered the following observations:

Letting someone use your apartment to cook and store crack cocaine for sale was no benign offense. That conduct helped keep the most vulnerable and helpless among us strung out on poison. And keeping a loaded semiautomatic pistol in a crack house did nothing to promote a safe environment. . . . However, it is true that you committed no act of violence[,] you did not deploy or brandish the pistol, and you did not use it here in connection with pedaling [sic] crack.

Id. at 33. After weighing the factors to be considered in imposing a sentence, see 18 U.S.C. § 3553(a), the District Court sentenced appellant to 97 months of imprisonment. Id. at 30-36.

II. ANALYSIS

A. Standard of Review

Following the Supreme Court's decisions in United States v. Booker, 543 U.S. 220 (2005), and Gall v. United States, 128 S.Ct. 586 (2007), appellate courts review sentences under an abuse-of-discretion standard and set aside sentences found to be "unreasonable." Booker, 543 U.S. at 261-63; Gall, 128 S.Ct. at 597. This review proceeds in two steps. First, the court must ensure that the district court committed no procedural error, "such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence -- including an explanation for any deviation from the Guidelines range." Gall, 128 S.Ct. at 597. Once the appellate court determines that a sentence is procedurally sound, it reviews the substantive reasonableness of the sentence under an abuse-of-discretion standard. Id.; see also United States v. Gardellini, 545 F.3d 1089,1092-93 & n.2 (D.C. Cir. 2008).

In applying the clearly erroneous standard, an appellate court must remain mindful that judicial findings of fact are presumptively correct. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500 (1984). This presumption "recognizes and rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh the evidence," Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982), the comparative expertise of trial and appellate judges, and the cost of duplicative appellate decisionmaking, Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985). Pursuant to this presumption, a finding of fact will not be overturned as "clearly erroneous" unless, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 573.

HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL STANDARDS OF REVIEW -- REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 62 (2007). "However, when a district judge altogether fails to make findings or fails to make findings with respect to a material issue, appellate courts normally ...


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