UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4879
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRANCE L. SMALLS, a/k/a T,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-98-322)
Submitted: April 17, 2006 Decided: June 13, 2006
Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew J. Savage, III, SAVAGE & SAVAGE, P.A., Charleston, South
Carolina, for Appellant. Robert Hayden Bickerton, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
*
Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
PER CURIAM:
Terrance L. Smalls appeals following a remand to the
district court for resentencing. After considering the issues
raised on appeal, we affirm the sentence imposed by the district
court on remand.
Smalls pled guilty to one count of conspiracy to possess
with intent to distribute an unspecified quantity of cocaine and
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000)
(“Count One”) and one count of possession with intent to distribute
an unspecified quantity of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (“Count Two”). Smalls received a sentence of 480
months of imprisonment to be followed by a term of three years’
supervised release. Though this court affirmed Smalls’ conviction,
we concluded that Smalls’ sentence violated his Sixth Amendment
rights under United States v. Booker, 543 U.S. 220 (2005), because
it exceeded the maximum sentence allowable given the facts admitted
by him. United States v. Smalls, 134 Fed. Appx. 609, 616, 2005 WL
1395162 (4th Cir. 2005) (unpublished). Therefore, we vacated
Smalls’ sentence and remanded for resentencing.
On remand, the district court received a revised
presentence report and held a new sentencing hearing. The
presentence report found over 1.5 kilograms of cocaine base
attributable to Smalls and that the murder of Audrey Stoeckle was
part of and in furtherance of the underlying conspiracy; thus,
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Smalls’ advisory guidelines range was life imprisonment. United
States Sentencing Guidelines §§ 2A1.1, 2D1.1(c), 2D1.1(d)(1), & Ch.
5, Pt. A (Sentencing Table) (2003) (“USSG”). However, because
neither count specifically stated a drug quantity, sentencing under
both counts was capped by the applicable statutory maximum of
twenty years’ imprisonment. 21 U.S.C. § 841(b)(1)(C) (2000).
Given that the highest statutory maximum was lower than the
guidelines’ punishment, the presentence report employed USSG
§ 5G1.2(d) (2003) to impose consecutive terms of imprisonment.
At sentencing, Smalls challenged the legality of his
stipulation to a specific quantity of cocaine base in light of the
fact that the indictment stated no such quantity. Smalls contended
such a stipulation was illegal because it triggered a statutory
provision with a ten-year mandatory minimum term of imprisonment
and a maximum of life imprisonment. After hearing argument from
Smalls, his attorney, and the Government, the district court
concluded that the resentencing hearing was not the appropriate
forum for resolving Smalls’ contention. The court sentenced Smalls
to a total of 480 months’ imprisonment, which consisted of two
consecutive 240-month sentences, to be followed by three years of
supervised release, and a $200 special assessment. Smalls appealed
his sentence; his attorney filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), raising four issues. Smalls
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was notified of his right to file a pro se supplemental brief but
declined to do so.
Smalls first argues the district court violated his due
process rights in sentencing him based upon facts determined by a
preponderance of the evidence. As Smalls did not raise this
argument to the district court, this court reviews for plain error.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005); United
States v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002). Under the
plain error standard, Smalls must show: (1) there was error; (2)
the error was plain; and (3) the error affected his substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). When
these conditions are satisfied, this court may exercise its
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted). The
burden of showing plain error is on the defendant. United States
v. Strickland, 245 F.3d 368, 379-80 (4th Cir. 2001).
After the Supreme Court’s decision in Booker, a
sentencing court must still calculate and consider the guideline
range, as well as consider the factors set forth in 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2005). United States v. Green, 436
F.3d 449, 455-56 (4th Cir. 2006); Hughes, 401 F.3d at 546.
Further, sentencing courts are not obligated, post-Booker, to
determine enhancements by a higher standard. See Hughes, 401 F.3d
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at 546 (consistent with the Booker remedial scheme, “a district
court shall first calculate (after making the appropriate findings
of fact) the range prescribed by the guidelines”); see also United
States v. Mares, 402 F.3d 511, 519 (5th Cir.) (“[t]he sentencing
judge is entitled to find by a preponderance of the evidence all
the facts relevant to the determination of a Guideline sentencing
range and all facts relevant to the determination of a
non-Guidelines sentence”), cert. denied, 126 S. Ct. 43 (2005);
McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.)
(explaining that “[t]he remedial portion of Booker held that
decisions about sentencing factors will continue to be made by
judges, on the preponderance of the evidence. . . .”), cert.
denied, 125 S. Ct. 2559 (2005). Accordingly, this claim fails.
Smalls next argues the district court erred in
considering the stipulation contained in his plea agreement as to
the quantity of cocaine base attributable to him because that
stipulation was illegal, involuntary, and unknowingly. Because
Smalls raised this issue at sentencing, we review the district
court’s factual findings for clear error and its related legal
conclusions, including the application of the sentencing
guidelines, de novo. Green, 436 F.3d at 456.
While Smalls did in fact stipulate that he was personally
responsible for over 500 grams but less than 1.5 kilograms of
cocaine base, the district court had no cause to rely on this
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stipulation in sentencing Smalls. The presentence report presented
a thorough and detailed basis for its determination that over 1.5
kilograms of cocaine base were attributable to Smalls. Further,
the quantity issue ultimately had no impact on Smalls’ sentence as
the murder cross-reference raised Smalls’ total offense level to
forty-three. USSG §§ 2A1.1 & 2D1.1(d)(1). Accordingly, Smalls’
claim lacks merit because there is no support for his contention
that the district court relied on this stipulation in determining
Smalls’ sentence.
Smalls’ third assignment of error relates to the district
court’s imposition of consecutive sentences. Because Smalls did
not raise this issue below, we review for plain error. Hughes, 401
F.3d at 547; Martinez, 277 F.3d at 524. The district court
committed no error in imposing consecutive sentences. The
application of the murder cross-reference raised Smalls’ offense
level to forty-three. USSG § 2A1.1. This, coupled with the
corrected criminal history category of II, yielded a sentencing
range of life imprisonment. USSG Ch. 5, Pt. A (Sentencing Table).
However, because of the twenty-year statutory maximums applicable
to these offenses, the court could not impose a life sentence.
Given that the guidelines’ punishment was less than the statutory
maximum, USSG § 5G1.2(d) required that the court impose consecutive
sentences. There was no error in applying this guideline to impose
consecutive sentences. See United States v. White, 238 F.3d 537,
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543 (4th Cir. 2001) (holding, in a factually analogous situation,
that the district court “would have been obligated” to impose
consecutive sentences to achieve “the total punishment mandated by
the guidelines”).
Smalls’ last argument, also raised for the first time on
appeal, is that the district court erred in applying the murder
cross-reference because Ms. Stoeckle’s murder should not have been
considered conduct relevant to Count Two. Because Smalls did not
raise this claim below, we review for plain error. Hughes, 401
F.3d at 547; Martinez, 277 F.3d at 524.
In his brief, Smalls concedes that the district court
grouped Counts One and Two pursuant to USSG § 3D1.2(d) (2003). For
offenses grouped under USSG § 3D1.2(d), relevant conduct is
broadly defined to include “all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same
course of conduct or common scheme or plan as the offense of
conviction.” USSG § 1B1.3(a)(2) (2003). This includes “all
reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.” USSG
§ 1B1.3(a)(1)(B) (2003).
Given that the court grouped Counts One and Two, there is
simply no support for Smalls’ contention that Ms. Stoeckle’s murder
was considered relevant conduct only as to Count Two. The
indictment stated the relevant time frame for Count One as January
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1, 1992 to July 31, 1998. Smalls and his co-defendant murdered Ms.
Stoeckle in July 1994 because they believed she was a law
enforcement informant. Smalls admitted driving with his co-
defendant to the site of Ms. Stoeckle’s murder, shooting his
firearm into the ground near her several times, and that one of
those shots could have hit Ms. Stoeckle. Ms. Stoeckle’s murder —
committed to silence a suspected informant — was a reasonably
foreseeable event in furtherance of the conspiracy that occurred
within the time frame alleged for the conspiracy. Thus, the
application of the murder cross-reference was appropriate.
For the foregoing reasons, we affirm Smalls’ sentence.
We have, as required by Anders, reviewed the record and have found
no meritorious issues for appeal. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes such a
petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. 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
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