UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4083
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEROME MAURICE GORDON, a/k/a Lance Fitzgerald
Stewart, a/k/a Richie, a/k/a Michael Anthony
Martin, a/k/a Julian Hugh Martin,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
00-253-PJM)
Argued: November 30, 2005 Decided: March 16, 2006
Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Senior Judge Hamilton wrote the opinion, in which Judge
Widener joined. Judge Gregory wrote a separate opinion concurring
in part and dissenting in part.
ARGUED: Thomas Harold Ostrander, Bradenton, Florida, for Appellant.
Steven M. Dunne, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON
BRIEF: Harvey Greenberg, Towson, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, Mythili Raman, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
HAMILTON, Senior Circuit Judge:
Gerome Gordon pled guilty to one count of conspiracy to
distribute and to possess with intent to distribute 1000 or more
kilograms of marijuana, 21 U.S.C. §§ 841(b)(1)(a)(vii) and 846, and
was sentenced to 188 months’ imprisonment. For the reasons stated
below, we affirm Gordon’s conviction but vacate his sentence and
remand the case for resentencing.
I
On March 11, 2002, a federal grand jury returned a second
superseding indictment charging Gordon and four others with
conspiracy to distribute and to possess with intent to distribute
1000 or more kilograms of marijuana in “the District of Maryland,
the Southern District of California, the Central District of
California, . . . and elsewhere,” (J.A. 18), in violation of 21
U.S.C. §§ 841(b)(1)(a)(vii) and 846. On July 31, 2002,
approximately two weeks before his trial was scheduled to begin,
Gordon, without a plea agreement with the government, pled guilty
to the one-count second superseding indictment.
At the plea hearing, the district court asked various
questions of Gordon to ensure that he understood what was
happening, was not under the influence of alcohol or drugs, and was
not under the care of any mental health professional, psychiatrist,
or psychologist. The court also asked Gordon whether he understood
3
that the charge to which he was pleading guilty was conspiracy to
distribute and to possess with intent to distribute 1000 or more
kilograms of marijuana. Gordon acknowledged that he understood the
charge and repeatedly stated that he wished to plead guilty to the
charge.
During the plea hearing, the government made a factual
proffer. Gordon admitted to most of the factual proffer, but
denied the existence of certain facts. However, Gordon did admit,
among other things, that during the charged conspiracy: (1) he
“along with his co-defendants, coordinated the transportation of
over a thousand kilograms of marijuana from California to various
points along the east coast, including Maryland,” (J.A. 106-07);
(2) he gave marijuana to persons who used trucking companies for
the transportation of marijuana; (3) he had told a cooperating
defendant that he had on several occasions moved marijuana from San
Diego to a storage facility in Fontana, California, where the
marijuana was loaded into trucks for transportation; (4) he
participated directly in the sale and transportation of marijuana;
and (5) on numerous times he was captured engaging in recorded
conversations during which he spoke about the transportation of
marijuana. Following the government’s factual proffer, Gordon
stated that his decision to plead guilty was “voluntary,” that
nobody had threatened or coerced him to plead guilty, and that he
was “pleading guilty because [he was] guilty in this case.” (J.A.
4
116-17). Thereafter, the district court accepted Gordon’s plea and
found him guilty of the charged offense.
Gordon was sentenced on January 3, 2003. During the
sentencing hearing, Gordon contended that he was accountable for
approximately 315 kilograms of marijuana, which would have placed
him at a base offense level of 26 under the United States
Sentencing Guidelines.1 The district court rejected this
contention, finding that Gordon was responsible for at least 1000
kilograms of marijuana, which placed Gordon at a base offense level
of 32. The court relied on Gordon’s admission at the plea colloquy
that he, along with his codefendants, coordinated the
transportation of 1000 kilograms of marijuana from California to
Maryland. Alternatively, the court concluded that the extensive
evidence of marijuana trafficking produced at the sentencing
hearing supported the finding, by a preponderance of the evidence,
that Gordon was accountable for 1000 kilograms of marijuana for
sentencing purposes.
The district court also applied, over Gordon’s objections, a
two-level enhancement for possession of a firearm, USSG
§ 2D1.1(b)(1), a two-level enhancement for being an organizer,
manager, or leader of a criminal activity, USSG § 3B1.1(c), and a
1
Notably, Gordon never moved to withdraw his guilty plea to
conspiracy to distribute and to possess with intent to distribute
1000 or more kilograms of marijuana, 21 U.S.C. §§ 841(b)(1)(a)(vii)
and 846.
5
two-level enhancement for obstruction of justice, USSG § 3C1.1.
After applying a two-level reduction for acceptance of
responsibility, USSG § 3E1.1(a), the court set Gordon’s offense
level at 36, resulting in a sentencing range of 188 to 235 months’
imprisonment.2 Gordon was sentenced to 188 months’ imprisonment
and, thereafter, noted a timely appeal.
II
Gordon argues that the sentence imposed upon him by the
district court violated his Sixth Amendment rights. Because Gordon
failed to raise this issue in the district court, we review for
plain error. United States v. Harp, 406 F.3d 242, 247 (4th Cir.
2005). To establish plain error, Gordon must show that an error
occurred, that the error was plain, and that the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993); United States v. White, 405 F.3d 208, 215 (4th Cir. 2005).
If Gordon establishes these requirements, we may exercise our
discretion to notice the error “only when failure to do so would
result in a miscarriage of justice, such as when the defendant is
actually innocent or the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Hughes, 401 F.3d 540, 555 (4th Cir. 2005) (citation and
internal quotation marks omitted). To establish that a Sixth
2
Gordon’s criminal history category was I.
6
Amendment error occurred in his sentencing, Gordon must show that
the district court imposed a sentence exceeding the maximum allowed
based only on the facts that he admitted. United States v. Evans,
416 F.3d 298, 300-01 (4th Cir. 2005); see also United States v.
Booker, 125 S. Ct. 738, 756 (2005) (Stevens, J., opinion of the
Court) (“Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.”).
In this case, Gordon admitted during the plea colloquy that
he, along with his codefendants, coordinated the transportation of
1000 or more kilograms of marijuana from California to Maryland.
However, at no time during either the plea colloquy or at the
sentencing hearing did Gordon admit that he possessed a firearm,
was an organizer, manager, or leader of a criminal activity, or
that he obstructed justice. Based on Gordon’s admission that he
coordinated the transportation of 1000 or more kilograms of
marijuana, his maximum offense level was 32.3 Based on an offense
3
Gordon argues that his admission that he, along with his
codefendants, coordinated the transportation of 1000 or more
kilograms of marijuana was only an admission that he and his
codefendants transported marijuana, and that at other times his
codefendants transported marijuana without his participation, and
that in the aggregate the quantity shipped both with and without
his participation exceeded 1000 kilograms. We reject this argument
for the same reason the district court did. The most natural
reading of Gordon’s admission is that Gordon himself, with the
7
level of 32 and a criminal history category of I, Gordon’s
sentencing range would have been 121 to 151 months’ imprisonment.4
Because Gordon’s 188 month sentence exceeds the maximum authorized
by the facts he admitted, a Sixth Amendment error occurred. Evans,
416 F.3d at 300-01. Under our decision in Hughes, we must notice
this plain error. Hughes, 401 F.3d at 555-56 (concluding error was
plain and warranted reversal where district court imposed sentence
assistance of his codefendants, coordinated the transportation of
1000 kilograms or more of marijuana from California to Maryland.
Thus, Gordon’s admission went well beyond a mere admission that he
knowingly and willfully agreed to participate in the charged
conspiracy and committed an overt act in furtherance of the
conspiracy. Cf. North Carolina v. Alford, 400 U.S. 25, 32 (1970)
(“Ordinarily a judgment of conviction resting on a plea of guilty
is justified by the defendant’s admission that he committed the
crime charged against him and his consent that judgment be entered
without a trial of any kind.”). His admission contained an express
statement that during the charged conspiracy he coordinated the
transportation of 1000 kilograms or more of marijuana.
Unquestionably, Gordon’s factual admission authorized the court to
set his base offense level at 32. Evans, 416 F.3d at 300-01
(holding that, if sentence does not exceed maximum authorized by
facts admitted by defendant or found beyond a reasonable doubt,
there is no Sixth Amendment violation).
4
For purposes of determining whether the district court erred,
we use Gordon’s sentencing range based on the facts he admitted
before adjusting that range for acceptance of responsibility.
Evans, 416 F.3d at 300 n.4. As noted in Evans, acceptance of
responsibility “is not a fact that is alleged in an indictment or
presented to the jury.” Id. “Neither is it a fact that the
defendant can admit. Instead, a district court may grant
acceptance of responsibility only after making findings of fact
based on several considerations--only one of which is whether the
defendant admitted his guilt.” Id. We note that Gordon challenges
the district court’s decision to deny him an additional one level
reduction for acceptance of responsibility pursuant to USSG
§ 3E1.1(b). We have reviewed this challenge and conclude that the
district court correctly found that Gordon did not timely notify
the government of his intention to plead guilty.
8
under mandatory Guidelines based on judicial factfinding,
increasing sentencing range beyond that which could have been
imposed on the basis of facts found by jury or admitted by
defendant).5
III
Gordon raises several additional arguments that he contends
should be resolved in his favor. We have reviewed each of these
arguments and find them to be without merit. Accordingly, for the
reasons stated herein, we affirm Gordon’s conviction but vacate his
sentence and remand the case for resentencing. On remand, the
district court need not revisit any issue concerning drug
quantity.6
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
5
As in Hughes, “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of [Gordon’s] sentencing.” 401 F.3d at 545 n.4.
6
Gordon has filed three motions to file supplemental briefs
and a motion to have the government at its expense produce a
portion of a trial transcript from a related case. The court
denies these motions.
9
GREGORY, Circuit Judge, concurring in part and dissenting in part:
Although I concur with the reasoning and result of the
majority opinion in all other respects, I respectfully disagree
with its conclusion that Gordon admitted the quantity of marijuana
attributable to him during his plea hearing. Therefore, I believe
that the judicial quantity finding created a Sixth Amendment error
in Gordon’s sentence in addition to the enhancements discussed by
the majority. As a result, I would vacate Gordon’s sentence on
this basis as well, leaving quantity open to challenge upon remand.
As an initial matter, I note that although the indictment
charged that the marijuana conspiracy involved more than 1000
kilograms, Gordon’s plea of guilty to that charge did not alone
establish the quantity attributable to him for sentencing purposes.
Under the Guidelines, different participants in a drug conspiracy
may be held accountable for different amounts. USSG § 1B1.3 & cmt.
n.2 (discussing the determination of a defendant’s relevant conduct
arising from jointly undertaken criminal activity and providing
that a defendant is responsible for the conduct of others that is
“in furtherance of the jointly undertaken criminal activity” and
“reasonably foreseeable in connection with that criminal
activity”). Therefore, when an indictment attributes a quantity to
a conspiracy as a whole, but does not ascribe an amount to a
particular defendant, we have held that the defendant’s plea of
guilty to that charge does not set the defendant’s responsibility
10
at that amount for sentencing. United States v. Gilliam, 987 F.2d
1009 (4th Cir. 1993) (vacating sentence based upon the 30 kilograms
of cocaine charged in the conspiracy indictment where the
indictment did not specify that that quantity was attributable to
the defendant and remanding for the district court to make a
finding in that regard).
In the present case, Gordon pleaded guilty to a generally
worded indictment that attributed 1000 kilograms of marijuana to
the conspiracy as a whole. Gordon argues that he did not admit
that any more than 315 kilograms was attributable to him. This
quantity corresponds to an offense level of 26 and, in conjunction
with Gordon’s criminal history category of I, establishes a
sentencing range of 63 to 78 months’ imprisonment. Therefore, the
use of the judge’s finding that at least 1000 kilograms were
attributable to him in imposing a 188-month sentence would
establish plain error under the Sixth Amendment just as the other
enhancements do. See United States v. Evans, 416 F.3d 298, 300
(4th Cir. 2005); United States v. Hughes, 401 F.3d 540, 555 (4th
Cir. 2005). See also United States v. Collins, 415 F.3d 304, 311-
14 (4th Cir. 2005) (holding that it was a Sixth Amendment error
under Apprendi v. New Jersey, 530 U.S. 466 (2000), for defendant,
convicted of conspiracy to distribute 50 or more grams of cocaine
base, to be sentenced to the statutory minimum sentence for 50 or
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more grams of cocaine base without a jury finding that amount
attributable to him).
The majority rejects this argument, concluding that Gordon did
admit responsibility for 1000 or more kilograms of marijuana in his
plea hearing. It therefore finds no Sixth Amendment error with
respect to this aspect of his sentence and directs the district
court that it need not readdress the quantity dispute upon remand.
The majority relies upon Gordon’s admission that he, “along with
his co-defendants, coordinated the transportation of over a
thousand kilograms of marijuana from California to various points
along the east coast, including Maryland.” J.A. 106-07 (emphasis
added). It reasons that the most natural interpretation of this
language is that Gordon was admitting his personal responsibility
for the 1000-kilogram figure. I cannot agree.
On its face, the language of Gordon’s admission does not
separate out Gordon’s conduct from that of his codefendants. The
majority’s reading notwithstanding, I believe that Gordon supplies
the more natural reading--that in aggregate, the amounts that
Gordon coordinated and the amounts that others coordinated without
his involvement totaled in excess of 1000 kilograms.
At oral argument, the government agreed that the indictment
was not so specific as to attribute an amount to Gordon, yet argued
that the language of Gordon’s admission was more precise. I do not
accept this distinction. The indictment charges that Gordon and
12
his codefendants “did knowingly combine, conspire, confederate and
agree with one another . . . to distribute and possess with intent
to distribute more than 1000 kilograms of marijuana.” J.A. 18-19.
At his plea hearing, Gordon admitted that he, “along with his co-
defendants, coordinated the transportation of over a thousand
kilograms of marijuana.” J.A. 106-07. The admission specifies the
conduct involved (coordinating), but it goes no further toward
distinguishing Gordon’s amount from that attributable to the
conspiracy as a whole. Thus, the admission can hardly be described
as more precise than the charge in the indictment. Indeed, they
are virtually indistinguishable.
Moreover, putting the plea hearing admission in context only
confirms that Gordon was not admitting to the 1000 kilograms.
Gordon’s plea was atypical in that he and the government never
entered into a plea agreement or otherwise stipulated to the
relevant facts. Rather, throughout the proceedings below,
including during his plea hearing, Gordon disputed the government’s
allegations of the extent of his responsibility. Ultimately, when
he decided to plead guilty, Gordon was “prepared to admit his guilt
as to the conspiracy,” but not “everything the government says he
did.” J.A. 94. The government understood that Gordon would not
admit to all of its allegations and particularly the quantity
issue. On two separate occasions during the hearing, the
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government counsel informed the district court that the quantity
involved could be open to challenge at the sentencing hearing.
Finding itself without agreed-upon facts, the district court
ultimately decided to determine the factual basis for Gordon’s plea
through a proffer by the government. Under this process, the
government would read its proposed statement of facts sentence by
sentence, and Gordon would admit or deny each one. From the
instructions of the court, Gordon was aware that he needed to admit
sufficient facts through the proffer for the district court to
support his plea to the conspiracy charge. Therefore, it is no
surprise that when presented with a generally worded statement, the
language of which echoed the language of the charge, Gordon
admitted to “coordinat[ing] the transportation” of marijuana as
part of his plea. When the allegations became more specific as to
quantities, Gordon admitted certain facts, but denied others. The
amounts that Gordon admitted fall short of 1000 kilograms.
Finally, the district judge’s own comment after the factual
proffer that “basically everything is on the table” for Gordon’s
sentencing suggests that, at the time, even he did not understand
Gordon’s admission to have resolved the quantity issue. J.A. 121.
Indeed, at sentencing, the district court effectively treated
quantity as unresolved, allowing extensive evidence from both sides
directed at the amount to be attributed to Gordon. The district
court then made a finding that more than 1000 kilograms were
14
attributable to Gordon by a preponderance of the evidence and
imposed a sentence based upon that quantity and additional judge-
found facts. Just as the use of the other enhancements violated
Gordon’s Sixth Amendment rights, so did the use of the quantity
finding. See Evans, 416 F.3d at 300.
Thus, in light of the general wording of the admission and the
circumstances surrounding it, I do not agree that Gordon admitted
the fact that over 1000 kilograms of marijuana was attributable to
him. Therefore, I would find a Sixth Amendment error on this basis
as well and leave this issue open to challenge before the district
court upon resentencing.
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