UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4518
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LIVINSON BRUMAIRE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-03-474)
Submitted: October 12, 2005 Decided: November 29, 2005
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
Creighton B. Coleman, Winnsboro, South Carolina, for Appellant.
Alfred W. Bethea, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Livinson Brumaire appeals his conviction and sentence for
one count of conspiracy to possess with intent to distribute 50
grams of crack cocaine and 5 kilograms of cocaine, in violation of
21 U.S.C. §§ 841(b)(1)(A), 846 (2000). Brumaire’s attorney filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in his opinion, there are no meritorious issues for
appeal. Counsel does assert however, that Brumaire’s sentence is
improper in light of Blakely v. Washington, 124 S. Ct. 2531 (2005),
and Apprendi v. New Jersey, 530 U.S. 466 (2000). Brumaire filed a
pro se supplemental brief challenging his sentence under United
States v. Booker, 543 U.S. , 125 S. Ct. 738 (2005), the
sufficiency of the evidence, the selection of the jury, and alleged
compliance with the Speedy Trial Act and his constitutional rights
to a speedy trial. Brumaire also contends his trial should have
been severed from his co-defendant and the prosecutor engaged in
misconduct during closing arguments.1 While we affirm the
conviction, we vacate the sentence and remand for resentencing.
1
To the extent Brumaire contends counsel was ineffective for
not preserving some of his issues, claims of ineffective assistance
of counsel are not cognizable on direct appeal unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). To allow for
adequate development of the record, claims of ineffective
assistance generally should be brought in a 28 U.S.C. § 2255 (2000)
motion. United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Because the record does not conclusively establish counsel was
ineffective, we decline to review that claim.
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Brumaire was involved in a significant drug conspiracy
distributing crack cocaine in South Carolina. At trial, many of
Brumaire’s co-defendants testified against him. The evidence was
overwhelming that Brumaire was a significant operative in the
conspiracy that spanned several years. Accordingly, we find the
evidence was sufficient to support the conviction. Glasser v.
United States, 315 U.S. 60, 80 (1942) (stating standard).
Brumaire’s challenge to the jury venire must fail. There
is no evidence he challenged the selection of the jury venire at
trial. Accordingly, review is waived. See 28 U.S.C. § 1867
(2000); United States v. Webster, 639 F.2d 174, 180 (4th Cir.
1981). Moreover, our review of the record shows no support for his
claim that representation of blacks in the venire was not fair and
reasonable or that there was a systemic exclusion of blacks from
the jury venire. United States v. Lewis, 10 F.3d 1086, 1089-90
(4th Cir. 1993).
Brumaire’s contention that the Speedy Trial Act was
violated must fail. Because Brumaire did not object at trial,
review is for plain error. United States v. Olano, 507 U.S. 725,
732 (1993). Assuming, arguendo, there was error, Brumaire fails to
show the error affected his substantial rights. See United
States v. White, 405 F.3d 208, 223 (4th Cir. 2005). With respect
to the constitutional guarantee of a speedy trial, we find the
delay was not sufficient to trigger a speedy trial inquiry.
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Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker v.
Wingo, 407 U.S. 514, 530 (1972). Finally, there is no evidence the
prosecutor engaged in misconduct during closing arguments.
Brumaire’s claim that the prosecutor engaged in misconduct and he
was prejudiced by such conduct is purely speculative and without
foundation.
The jury found beyond a reasonable doubt Brumaire was
responsible for 50 grams or more of crack cocaine and 5 kilograms
of cocaine. Combining these drug amounts would have resulted in a
base offense level of 32, with a corresponding guideline range of
121 to 151 months’ imprisonment for Brumaire’s criminal history
category. At sentencing, however, the district court found
Brumaire was responsible for 90.68 kilograms of crack cocaine, for
an offense level of 38. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(1) (2003). Two points were added based upon Brumaire
being a leader, organizer, manager, or supervisor of at least three
other individuals. See USSG § 3B1.1(c). Brumaire’s total offense
level was 40. The result was a guideline sentence of 292 to 365
months’ imprisonment. Neither the drug quantity nor the leadership
enhancement were found by the jury beyond a reasonable doubt or
admitted by Brumaire. Brumaire’s sentence was imposed prior to the
decisions in Booker and Blakely, and he did not raise objections to
his sentence based on the mandatory nature of the Sentencing
Guidelines or the district court’s application of sentencing
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enhancements based on facts not admitted by him or found by a jury
beyond a reasonable doubt. Therefore, we review his sentence for
plain error. See United States v. Hughes, 401 F.3d 540, 546-60
(4th Cir. 2005). His sentence of 292 months’ imprisonment meets
the standard for plain error that must be recognized under the
reasoning set forth in Hughes.2 Accordingly, we will vacate
Brumaire’s sentence and remand for resentencing in light of
Booker.3
Accordingly, we affirm the conviction and vacate and
remand his sentence for resentencing consistent with Booker and
Hughes. We deny the following motions filed by Brumaire:
(1) December 21, 2004 motion to relieve and substitute attorney;
2
Just as we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Brumaire’s sentencing.
See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).
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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(2) January 24, 2005 motion to substitute attorney; (3) February
10, 2005 motion to compel counsel to withdraw the Anders brief;
(4) February 18, 2005 motion to withdraw counsel; (5) April 18,
2005 motion to compel discovery; and (6) September 22, 2005 motion
to relieve counsel. To the extent Brumaire seeks transcripts of
the voir dire and closing arguments, we deny the request. 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
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