United States v. Taylor

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4837

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

IRA TAYLOR,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cr-00587-RDB-1)

Argued: December 4, 2009 Decided: March 2, 2010

Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished opinion. Judge Niemeyer wrote the
opinion, in which Judge Michael and Judge Gregory joined.

ARGUED: David Warren Lease, SMITH, LEASE & GOLDSTEIN, LLC,
Rockville, Maryland, for Appellant. Jonathan Biran, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Traci L.
Robinson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

Ira Taylor pleaded guilty to a violation of 18 U.S.C.

§ 922(g)(1) (unlawful possession of a firearm by a convicted

felon) pursuant to a plea agreement in which the government

stipulated to the Sentencing Guidelines’ base offense level and

agreed to recommend a sentence within the final advisory

Guidelines range, which the presentence report calculated at 30

to 37 months’ imprisonment. The district court, however, found

as a fact of relevant conduct that Taylor had participated in

attempted first-degree murder and, based on that finding,

recomputed Taylor’s advisory Guidelines range at 120 months’

imprisonment. Following Taylor’s request for a variance

sentence, based on the factors in 18 U.S.C. § 3553(a), the

district court sentenced Taylor to 78 months’ imprisonment.

On appeal, Taylor argues (1) that the government breached

the plea agreement by alluding to and presenting facts of

relevant conduct and thereby attempting an “end-run” around its

obligations in the plea agreement, and (2) that the district

court effectively found Taylor guilty of attempted first-degree

murder without submitting the issue to a jury, in violation of

his Fifth and Sixth Amendment rights.

We reject Taylor’s arguments and affirm.

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 I

When Taylor was arrested in Baltimore, Maryland, on May 17,

2006, on two state warrants for two separate attempts of first-

degree murder and related offenses, he was found to be in

possession of a loaded .38 caliber handgun. Because Taylor had

previously been convicted of a felony, he was prosecuted in this

action for unlawful possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). Pursuant to a plea agreement, he pleaded

guilty to the firearms charge, expecting to receive a sentence

in the range of 30 to 37 months’ imprisonment, based on the

government’s stipulations and agreements.

In the plea agreement, the government stipulated to a base

offense level of 20 and a reduction of that offense level of up

to 3 levels for acceptance of responsibility, subject to

specified conditions not relevant here. The agreement indicated

that the parties had made no agreement as to Taylor’s criminal

history or his criminal history category. The parties agreed

that “with respect to the calculation of the advisory guidelines

range, no other offense characteristics, Sentencing Guidelines

factors, or potential departures or adjustments . . . will be

raised or are in dispute,” and the government agreed to

recommend a sentence within the “final advisory guideline

range.” But each of the parties reserved the right “to bring to

the Court’s attention at the time of sentencing . . . all

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relevant information concerning the Defendant’s background,

character and conduct.”

The plea agreement included the parties’ acknowledgment

that neither the court nor the probation office was bound by the

plea agreement and that “the Court is under no obligation to

accept [the government’s] recommendations, and the Court has the

power to impose a sentence up to and including the statutory

maximum stated above [10 years’ imprisonment].”

In the presentence report that followed, the probation

officer recommended a base offense level of 20 and a 3-level

downward adjustment for acceptance of responsibility, for a

total offense level of 17. In view of Taylor’s two prior drug

convictions, he fell within criminal history Category III,

yielding an advisory Guidelines range of 30 to 37 months’

imprisonment. The presentence report also reported that Taylor

had three juvenile delinquency adjudications involving drugs and

guns and six arrests for drug and gun violations, for which he

was not prosecuted. Among the six arrests was the arrest on May

17, 2006, made on warrants charging him with two counts of

attempted first-degree murder and related offenses. Those

charges, however, were not prosecuted by the State and the

docket was marked “nolle prosequi.”

Taylor filed objections to the presentence report and

requested a downward departure under U.S.S.G. § 4A1.3(b) based

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on his claim that his criminal history Category III over-

represented the seriousness of his criminal history and

likelihood of recidivism. The government submitted a memorandum

in opposition, arguing that, if anything, Taylor’s criminal

history category under-represented Taylor’s dangerousness. The

government pointed to the arrest for two attempted first-degree

murder charges, which, although not prosecuted, involved a

shooting of James Irving on April 2, 2006, and the shooting of

Montay Powell on May 1, 2006. The government’s memorandum

stated that Irving identified Taylor as the man who had shot

him, that several eye witnesses identified Taylor as the man who

had shot Powell, and that the government intended to present

evidence at sentencing to prove Taylor’s conduct. In view of

this criminal history, the government recommended a sentence at

the high end of the 30-37 month Guidelines range.

Taylor replied to the government’s memorandum, asserting

that the government’s argument for a high sentence based on the

attempted murders was unfounded. He complained that the

government was attempting to try Taylor for crimes that had

never been proved against him beyond a reasonable doubt. Taylor

concluded by reiterating his request that the court depart

downwardly as his criminal history category over-represented his

actual criminal history.

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 At the first sentencing hearing held on May 30, 2008, the

district court stated, in light of the conduct alluded to by the

government in its sentencing memorandum, that if it determined

that Taylor had in fact shot either Irving or Powell, it would

consider an upward departure under the Sentencing Guidelines or

an increased variance sentence pursuant to 18 U.S.C. § 3553(a).

It admonished Taylor that the court could impose a sentence of

up to the maximum of 10 years’ imprisonment. At Taylor’s

request, the court granted Taylor a continuance to allow him to

prepare a response to the court’s observations.

At the second sentencing hearing held on July 24, 2008, the

court granted Taylor’s motion to exclude evidence about the

Powell shooting inasmuch as Powell had, in the interim, been

murdered and there would be no direct evidence about the earlier

shooting. The court, however, denied Taylor’s motion to exclude

evidence of the Irving shooting, as the government was prepared

to present the testimony of Irving himself, as well as a

Baltimore City detective.

After hearing the testimony and Taylor’s cross-examination

of the witnesses, the court pointed out that the standard for

judicial factfinding at sentencing was the preponderance-of-the-

evidence standard, even in the aftermath of United States v.

Booker, 543 U.S. 220 (2005). After receiving arguments from

counsel about the evidence, the district court found that

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Irving’s testimony was credible and that the evidence that

Taylor had shot Irving was clear and convincing, a standard that

the court applied out of “an abundance of caution.” Based on

that finding, the court recalculated Taylor’s Guidelines’

offense level, considering the Irving shooting as relevant

conduct and applying cross-references to the attempted murder

Guidelines. The recomputation resulted in an offense level of

33, which, when combined with Taylor’s criminal history Category

III, yielded a Sentencing Guidelines range of 168 to 210 months’

imprisonment. Inasmuch as the statutory maximum for the

§ 922(g)(1) offense was 120 months’ imprisonment, the court held

that a 120-month sentence was the proper Guidelines range. See

U.S.S.G. § 5G1.1(a).

The court then invited arguments from counsel on

application of the § 3553 factors and on what sentence was

appropriate. The government again argued for a sentence at the

high end of the Guidelines range calculated under the original

plea agreement’s stipulated offense level, i.e., 30 to 37

months’ imprisonment. It reiterated that its presentation of

facts about the attempted murder of Irving “was only really in

response to defense counsel’s motion that the criminal history

was overrepresented.” The government made no other request

based on the court’s newly recalculated Guidelines range,

stating instead, “[W]e just seek a sentence at the high end of

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the Guidelines and we will leave it at that.” Counsel for

Taylor requested a sentence at the low end of the original

advisory Guidelines range. When the court retorted that the

Guidelines range was recalculated to be 120 months’

imprisonment, Taylor’s counsel proposed that the court sentence

Taylor to 60 months’ imprisonment.

After considering the Guidelines range, the § 3553(a)

factors, and the arguments of counsel, the district court

sentenced Taylor to 78 months’ imprisonment.

Taylor filed this appeal, contending that the government

breached the plea agreement and that the district court denied

Taylor his constitutional rights under the Fifth and Sixth

Amendments in finding that Taylor shot Irving.

II

Taylor claims that the government breached the plea

agreement by alluding to evidence of the two attempted murders

in its sentencing memorandum and by presenting evidence on the

Irving shooting. He reasons:

The trial court used this allegation of attempted
murder as “relevant conduct” under U.S.S.G. § 1B1.3 to
significantly increase Mr. Taylor’s offense guideline
calculation. Consequently, the Government’s
introduction of this alleged “relevant conduct”
constituted nothing but a “thinly veiled end-run”
around the Government’s previous agreement to a
particular offense guideline calculation in the plea
agreement.

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In support, Taylor cites United States v. Bowe, 257 F.3d 336,

345-46 (4th Cir. 2001), where we held that the defendant’s

introduction and then withdrawal of evidence prohibited by a

plea agreement was “a thinly veiled end-run around” the

defendant’s obligations in the plea agreement not to introduce

such evidence.

Because Taylor did not raise this breach-of-plea agreement

claim below, we review it now for plain error. For an appellate

court to notice plain error, “[t]here must be an ‘error’ that is

‘plain’ and that ‘affect[s] substantial rights.’ Moreover, Rule

52(b) leaves the decision to correct the forfeited error within

the sound discretion of the court of appeals, and the court

should not exercise that discretion unless the error ‘seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.’” United States v. Olano, 507 U.S. 725,

732 (1993) (quoting United States v. Young, 470 U.S. 1, 15

(1985) (in turn quoting United States v. Atkinson, 297 U.S. 157,

160 (1936))).

Taylor’s argument focuses primarily on paragraph 8 of the

plea agreement, which obligates the government to abstain from

introducing any evidence beyond that stipulated to in the

agreement concerning relevant offense conduct and Guidelines

factors. But this argument focuses too narrowly, ignoring other

provisions of the agreement that authorize both parties to

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dispute Taylor’s criminal history and that, in paragraph 10,

authorize the government to offer evidence concerning the

defendant’s “background, character and conduct.” His argument

also fails to recognize that the evidence offered by the

government was properly responsive to Taylor’s own argument that

his criminal history Category III over-represented his criminal

history.

The plain language of the agreement authorizes the

government to introduce evidence both on Taylor’s criminal

history and on his “background, character and conduct.” The

government did not, as Taylor contends, introduce the evidence

of the Irving shooting to make an argument for a different base

offense level from that stipulated to in the agreement or to

introduce Guidelines factors forbidden by paragraph 8. Indeed,

throughout the proceedings -- even after the court recalculated

the Guidelines range at 120 months’ imprisonment -- the

government continued to recommend that Taylor be sentenced in

the range of 30 to 37 months’ imprisonment, consistent with its

stipulation and agreement.

The government only brought up the fact of the shootings to

respond to Taylor’s assertion that his criminal history category

over-represented his criminal history and his dangerousness.

Moreover, Taylor’s criminal history was, in any event, fair game

for the parties, as they agreed not to stipulate to an

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appropriate criminal history or criminal history category. In

alluding to the shootings, the government focused specifically

on rebutting Taylor’s contention about his criminal history,

asserting that, if anything, Taylor’s criminal history Category

III understated his criminal history and dangerousness. Yet, in

making this argument, the government continued to recommend a

sentence at the top end of the originally calculated Guidelines

range of 30 to 37 months’ imprisonment.

Finally, even after the district court, on its own

initiative, recalculated Taylor’s offense level and Guidelines

range at 120 months’ imprisonment, the government did not

recommend a sentence within that range -- as the plea agreement

authorized it to do -- but continued to recommend a sentence at

the high end of the original guideline range of 30 to 37 months’

imprisonment.

Accordingly, we reject Taylor’s argument that the

government breached the plea agreement. See United States v.

Fentress, 792 F.2d 461, 464 (4th Cir. 1986) (“While the

government must be held to the promises it made, it will not be

bound to those it did not make”).

III

Taylor also makes two interrelated arguments challenging

the district court’s factfinding during sentencing regarding the

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attempted-murder conduct. First, he urges this court to reverse

based on the position taken by Justice Scalia in his concurrence

in Rita v. United States, 127 S. Ct. 2456, 2478 (2007) (Scalia,

J., concurring in part and concurring in the judgment), where he

commented that in reviewing a sentence for substantive

reasonableness, certain critical facts that are necessary for an

in-guidelines sentence to be lawful must be found by a jury

beyond a reasonable doubt, as distinguished from other facts

that a sentencing court may choose to consider in exercising its

discretion, which may be found by a preponderance of the

evidence. Taylor thus contends that because his sentence would

have been substantively unreasonable but for the judicial

factfinding determining that he had committed attempted murder,

the fact of the attempted murder needed to be found by a jury

beyond a reasonable doubt. He maintains that such “as-applied”

challenges to the constitutionality of judicial factfinding were

not foreclosed by Rita.

This argument, however, fails to account for numerous post-

Booker and post-Rita opinions permitting a sentencing court to

consider during sentencing uncharged or even acquitted criminal

conduct when the facts of that conduct are found by a

preponderance of the evidence. See, e.g., United States v.

Grubbs, 585 F.3d 793, 799 (4th Cir. 2009) (holding that, for

sentencing purposes, a court may consider uncharged conduct

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found by a preponderance of the evidence); United States v.

Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (holding that, so

long as the Guidelines range is treated as advisory, a

sentencing court may consider and find facts by a preponderance

of the evidence, provided that those facts do not increase a

sentence beyond the statutory maximum). The same reasoning

answers Taylor’s argument that he had a right to have the

attempted murder finding made by a jury beyond a reasonable

doubt.

Taylor also makes a more general contention that the

district court effectively convicted him of attempted murder

without the benefit of a jury and proof beyond a reasonable

doubt, in violation of his rights under the Fifth and Sixth

Amendments.

This argument, which is similar to his first argument, has

been specifically rejected by us numerous times. So long as the

district court sentences a defendant within the statutory

maximum authorized by the jury findings or guilty plea, the

court can consider facts that it finds by a preponderance of the

evidence to exercise its discretion in determining the

appropriate sentence within that maximum. See, e.g., Benkahla,

530 F.3d. at 512; United States v. Battle, 499 F.3d 315, 322-23

(4th Cir. 2007). Here, Taylor pleaded guilty to a violation of

§ 922(g)(1), with a maximum sentence of 120 months’

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imprisonment, and the district court appropriately imposed a

sentence of 78 months’ imprisonment, within the maximum, based

on facts that the court found by a preponderance of the

evidence, indeed by clear and convincing evidence.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

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