UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4197
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAMIEN DASHUNE DARDEN,
Defendant - Appellant.
No. 04-4198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICIA DARDEN,
Defendant - Appellant.
No. 04-4199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TINA DARDEN,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (CR-03-291)
Submitted: August 26, 2005 Decided: September 20, 2005
Before WILKINSON, LUTTIG, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
William J. Dinkin, DINKIN, PURNELL & JOHNSON, P.L.L.C., Richmond,
Virginia; Jennifer M. Newman, Richmond, Virginia; Keith B. Marcus,
BREMNER, JANUS & COOK, Richmond, Virginia, for Appellants. Paul J.
McNulty, United States Attorney, Michael J. Elston, Olivia N.
Hawkins, Assistant United States Attorneys, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Damien Dashune Darden,
Patricia Darden, and Tina Darden appeal their sentences imposed
following a jury trial. Damien appeals his life sentence plus
sixty months for conspiracy to distribute fifty or more grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
846 (2000), distribution of fifty grams or more cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and conspiracy
to possess and possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. §§ 924(c), 924(o).
Patricia appeals her 322-month prison sentence for conspiracy to
distribute five grams or more of cocaine base in violation of 21
U.S.C. §§ 841(a)(1), 846, possession of a firearm in furtherance of
a drug trafficking crime in violation of 18 U.S.C. § 924(c), and
maintaining a “crack house” in violation of 21 U.S.C. § 856. Tina
appeals her 300-month prison sentence for conspiracy to distribute
fifty grams or more of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1), 846, distribution of a detectable amount of cocaine
base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
possession of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c). Patricia and Tina also
challenge their drug conspiracy and firearms convictions, arguing
the evidence at trial was insufficient to support the jury’s
verdicts.
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The Dardens argue their sentences violated the Sixth
Amendment under Blakely v. Washington, 542 U.S. 296 (2004), because
they were enhanced based on judicial findings of drug quantity and,
in Damien’s case, of a leadership role in criminal activity
involving five or more people or that was extensive. After the
Dardens filed their opening briefs, United States v. Booker, 125 S.
Ct. 738 (2005), issued, and Booker applies to these appeals.
Booker, 125 S. Ct. at 769 (citing Griffith v. Kentucky, 479 U.S.
314, 328 (1987)) (Booker applies to all cases pending on direct
review at the time it was decided). Because the issues under
Blakely and Booker are raised or considered for the first time on
appeal, review is for plain error. See United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). To establish error, the Dardens
must show that the court imposed a guideline sentence greater than
the maximum sentence authorized by the facts found by the jury or
admitted. Booker, 125 S. Ct. at 746, 756; Hughes, 401 F.3d at 546-
47. We find the district court committed plain error under Booker
and the Sixth Amendment in sentencing these appellants, and we
vacate their sentences and remand for resentencing in light of
Booker.1 Additionally, we affirm Patricia’s and Tina’s
convictions.
1
Just as we noted in Hughes, 401 F.3d at 545 n.4, “we of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of the Dardens’
sentencing.
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Over each appellant’s objections, the district court set
the base offense level for each appellant at thirty-eight based on
1.5 kilograms of cocaine base attributed to the Darden drug
conspiracy,2 U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)
(2003). The district court added a four-level enhancement to
Damien’s offense level for his leadership role in the conspiracy,
USSG § 3B1.1(a). The total offense level for Damien was forty-two,
and with a criminal history category of IV, his sentencing range
was 360 months to life in prison. The district court imposed a
sentence of life imprisonment on two counts, 240 months in prison
on another count, to run concurrently, and sixty months on the
firearms count to run consecutively as required by statute.
However, based solely on the jury’s verdict, Damien’s base offense
level would have been thirty-two, see USSG § 2D.1(c)(4) (level for
over fifty grams of cocaine base). With a criminal history
category of IV, Damien’s sentencing range absent judicial
enhancements would have been 168 to 210 months, plus the sixty
months statutory mandatory minimum consecutive sentence on the
firearms charge. Because Damien’s sentence of life imprisonment
plus sixty months is higher than the sentencing range based solely
on the jury’s verdict, we find plain error under the Sixth
2
Grouping rules under USSG §§ 3D1.1-3D1.2 were applied to
yield the base offense level of 38 based on the conspiracy count.
The firearms count against each defendant was not grouped because
it required a mandatory minimum consecutive prison sentence of
sixty months.
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Amendment and we vacate Damien’s sentence and remand for
resentencing.
The district court calculated Patricia’s base offense
level as thirty-eight as noted above. With a criminal history
category of II, the sentencing range was 262 to 327 months in
prison, plus sixty consecutive months in prison for the firearms
charge. The district court sentenced Patricia to 262 months in
prison for the conspiracy count and 240 months on the crack house
count, to be served concurrently, and sixty months in prison on the
firearms count, to be served consecutively as required by law.
Patricia’s total sentence is 322 months in prison. However, based
solely on the jury’s verdict of conspiracy to distribute more than
five (but less than fifty) grams of crack cocaine, Patricia’s base
offense level would be twenty-six. USSG § 2D1.1(c)(7). With a
criminal history category of II, her maximum sentence authorized by
the verdict would be seventy to eighty-seven months, plus the sixty
month statutory minimum consecutive sentence for the firearms
charge, for a total maximum sentence of 147 months. Because
Patricia’s sentence of 322 months in prison exceeds the maximum
sentence authorized by the jury, we find plain error under the
Sixth Amendment and we vacate Patricia’s sentence and remand for
resentencing. However, we find the evidence at trial was
sufficient to support the jury verdict against Patricia on the
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conspiracy and firearms counts, and we affirm Patricia’s
convictions.
The district court also calculated Tina’s base offense
level as thirty-eight as noted above. With a criminal history
category of I, the sentencing range was 235 to 293 months in
prison, plus sixty consecutive months in prison for the firearms
charge. The district court sentenced Tina to 240 months in prison
on the drug conspiracy count and 235 months in prison on the crack
distribution count, to run concurrently, and sixty months in prison
on the firearms count, to run consecutively as required by statute.
Tina’s total sentence is 300 months. Based solely on the jury’s
verdict, Tina’s base offense level would have been thirty-two.
USSG § 2D.1(c)(4). With a criminal history category of I, Tina’s
sentencing range would be 121 to 151 months in prison. Adding the
mandatory minimum consecutive sentence of sixty months on the
firearms count, the maximum sentence for Tina authorized by the
jury verdict would be 211 months in prison. Because Tina’s
sentence of 300 months in prison exceeds 211 months, we find plain
error under the Sixth Amendment and we vacate Tina’s sentence and
remand for resentencing. However, we find the evidence at trial
was sufficient to support Tina’s jury convictions on the conspiracy
and firearms counts, and we affirm Tina’s convictions.
Accordingly, we affirm the convictions of Patricia and
Tina. We vacate Damien’s, Patricia’s and Tina’s sentences and
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remand for resentencing in light of Booker.3 We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
3
Although the Sentencing Guidelines are no longer mandatory,
Booker makes clear that a sentencing court must still “consult
[the] Guidelines and take them into account when sentencing.” 125
S. Ct. at 767. On remand, the district court should first
determine the appropriate sentencing range under the guidelines,
making all factual findings appropriate for that determination.
See Hughes, 401 F.3d at 546. The court should consider this
sentencing range along with the other factors described in 18
U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that
sentence falls outside the guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range . . . and reasonable.” Id. at 546-47.
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