UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5276
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JAMAR DEVENZIO ROBINSON,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior
District Judge. (CR-04-875)
Argued: October 26, 2006 Decided: January 11, 2007
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Traxler wrote
the opinion for the court. Judge Gregory wrote an opinion
concurring in the result. Judge Shedd wrote an opinion concurring
in the result.
ARGUED: Stanley D. Ragsdale, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellant. Robert E. Hood, STROM LAW FIRM, L.L.C., Columbia, South
Carolina, for Appellee. ON BRIEF: Reginald I. Lloyd, United States
Attorney, Columbia, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
TRAXLER, Circuit Judge:
Jamar Devenzio Robinson pled guilty to conspiracy to
distribute, and to possess with intent to distribute, 50 grams or
more of crack cocaine, and 5 kilograms or more of cocaine, in
violation of 21 U.S.C.A. § 846 (West 1999). Although the charges
carried a mandatory minimum sentence of ten years, see 21 U.S.C.A.
§ 841(b)(1)(A)(iii) (West 1999), the district court imposed a
sentence of 60 months imprisonment. The government appealed,
arguing that the sentence is unreasonable under United States v.
Booker, 543 U.S. 220 (2005). For the following reasons, we vacate
the sentence and remand for resentencing.
I.
The district court held a sentencing hearing on December 1,
2005. The presentence report (“PSR”) determined Robinson’s total
offense level to be 37, which included a two-level role-in-the-
offense enhancement. The enhancement was based on Robinson’s
statement to the FBI that he supervised two other people in his
drug distribution activities. See U.S.S.G. § 3B1.1(c) (increasing
the defendant’s total offense level by two levels if “based on the
defendant’s role in the offense, . . . the defendant was an
organizer, leader, manager, or supervisor in any criminal
activity”); U.S.S.G. § 3B1.1, comment. (n.2) (“To qualify for an
adjustment under this section, the defendant must have been the
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organizer, leader, manager, or supervisor of one or more other
participants.”).
The district court considered the pertinent part of the PSR,
which recounted statements Robinson gave to the FBI indicating he
had two people selling crack for him. J.A. 90. While Robinson did
not contest the accuracy of this part of the PSR, he disputed that
it could serve as a basis for the role enhancement. Robinson
argued that the statement did not establish that he was an
organizer, supervisor, or leader because the statement did not
indicate evidence of decision-making, recruitment, a right to a
larger share of the fruits of the crime, or any authority or
control over others. The government countered that Robinson’s
statement amounted to an admission of leadership over two other
individuals, thus satisfying the requirement for the leadership
enhancement.
After considering the arguments of counsel, the district court
declined to impose the role enhancement on grounds that had not
been raised. Concluding that the language of the indictment did
not explicitly charge Robinson with being a leader or organizer and
that the jury did not find that role, the district court sustained
the objection and declined to apply the leadership enhancement.
J.A. 56-57. Having concluded that the leadership enhancement did
not apply, the court held that Robinson qualified for the safety
valve provisions of the guidelines, which permitted the district
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court to sentence Robinson below the mandatory minimum of ten
years. See U.S.S.G. § 5C1.2. The district court imposed a
sentence of 60 months imprisonment.
II.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme
Court held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Id. at 490. Thereafter, in Blakely v.
Washington, 542 U.S. 296 (2004), the Supreme Court held that
the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis
of the facts reflected in the jury verdict or admitted by
the defendant. In other words, the relevant ‘statutory
maximum’ is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may
impose without any additional findings.
Id. at 303-04 (citations omitted). Because of the similarities
between the sentencing scheme at issue in Blakely and the Federal
Sentencing Guidelines, questions about the constitutionality of the
guidelines arose. While some courts concluded that the guidelines
were unaffected by Blakely, see, e.g., United States v. Hammoud,
381 F.3d 316, 353 (4th Cir. 2004) (en banc), vacated 543 U.S. 1097
(2005), others concluded that no guideline enhancements could be
applied unless the facts supporting the enhancement were alleged in
the indictment and found by the jury, see, e.g., United States v.
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Fanfan, 2004 U.S. Dist. LEXIS 18593 (D. Me. 2004). Thus, in the
uncertainty between Blakely and Booker, it was reasonable to assume
that enhancements, other than prior conviction enhancements, had to
be pled in the indictment and the facts supporting those
enhancements found by the jury beyond a reasonable doubt.
The Supreme Court resolved this issue with its opinion in
Booker. The Supreme Court applied Blakely to the guidelines and
concluded that “the Sixth Amendment is violated when a district
court, acting pursuant to the Sentencing Reform Act and the
guidelines, imposes a sentence greater than the maximum authorized
by the facts found by the jury alone.” United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005) (citing Booker, 543 U.S. at 244).
The Supreme Court remedied the constitutional violation by excising
the mandatory language from the sentencing guidelines, so that “the
discretion of a sentencing court is no longer bound by the range
prescribed by the guidelines.” Id. Because the sentencing
guidelines are now advisory post Booker, it is clear that the facts
supporting a sentencing enhancement need not be alleged in the
indictments to be used in the proper calculation of a defendant’s
sentence. See Booker, 543 U.S. at 233, 259.
In the wake of Booker, the district court when sentencing a
criminal defendant must:
(1) properly calculate the sentence range recommended by
the Sentencing Guidelines; (2) determine whether a
sentence within that range and within statutory limits
serves the factors set forth in § 3553(a) and, if not,
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select a sentence that does serve those factors; (3)
implement mandatory statutory limitations; and (4)
articulate the reasons for selecting the particular
sentence, especially explaining why a sentence outside of
the Sentencing Guidelines range better serves the
relevant sentencing purposes set forth in § 3553(a).
United States v. Green, 436 F.3d 449, 456 (4th Cir.) (footnote
omitted), cert. denied, 126 S. Ct. 2309 (2006). We review the
district court’s legal conclusions de novo and its findings of fact
for clear error. See id.
The government argues, and Robinson concedes, that the absence
of any leadership facts in the indictment does not preclude
application of a leadership enhancement when calculating the
advisory guidelines sentencing range. We agree. Accordingly, we
vacate the sentence and remand for further proceedings consistent
with this opinion.
III.
Based on the foregoing, we vacate Robinson’s sentence and
remand this case for resentencing.
VACATED AND REMANDED
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GREGORY, Circuit Judge, concurring:
I agree that the district court must resentence Robinson
because United States v. Booker, 543 U.S. 220 (2005), does not
require a sentencing enhancement to be alleged in the indictment.
I write to emphasize that, notwithstanding the error in sentencing,
this Court does not resolve the question concerning applicability
of the leadership enhancement. It is the district court’s province
to decide, at the resentencing hearing, whether the United States
has proven by a preponderance of the evidence that Robinson acted
in such a leadership capacity as to warrant the application of the
two-level leadership enhancement.
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SHEDD, Circuit Judge, concurring:
I agree that the district court erred and that Robinson must
be resentenced because of this error. I write separately to note
that at the time of the sentencing, United States v. Booker, 543
U.S. 220 (2005), had (as Judge Traxler explains) clearly
established “that the facts supporting a sentencing enhancement
need not be alleged in the indictments to be used in the proper
calculation of a defendant’s sentence.” Therefore, regardless of
the reasonableness of any pre-Booker assumption on this point,
there was no basis for the district court’s contrary sua sponte
ruling in this case.
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