NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0062n.06
No. 09-5017
FILED
UNITED STATES COURT OF APPEALS Jan 31, 2011
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, ON APPEAL FROM THE
UNITED STATES DISTRICT
v. COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
SHAUN SANDERS,
OPINION
Defendant-Appellant.
/
Before: KENNEDY and MARTIN, Circuit Judges; MURPHY, District Judge.*
CORNELIA G. KENNEDY, Circuit Judge. Defendant-Appellant Shaun Sanders pleaded
guilty to conspiracy to distribute cocaine and cocaine base. After determining that Sanders qualified
as a career offender under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, the district
court sentenced him within the Guidelines to 169 months’ imprisonment. Sanders now challenges
the district court’s application of § 4B1.1 to his Guidelines calculation, alleging that use of his prior
convictions to enhance his Guidelines range violated the Supreme Court’s decisions in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005), as well as the
notice requirements of 21 U.S.C. § 851(a)(1). Because we find that each of these arguments lacks
merit, we affirm Sanders’s sentence.
*
The Honorable Stephen J. Murphy III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 09-5017
United States v. Sanders
On May 13, 2008, Sanders, along with twenty other co-defendants, was indicted in the United
States District Court for the Eastern District of Tennessee on the charge of conspiracy to distribute
and to possess with intent to distribute at least five kilograms of cocaine and at least fifty grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Indictment Count 1,
ECF No. 2.) Sanders entered a plea agreement with the Government, pursuant to which he pleaded
guilty on September 17, 2008 of the lesser-included offense of conspiracy to distribute cocaine and
cocaine base. (Plea Agreement, ECF No. 229; Rearraignment Tr., Sept. 17, 2008, ECF No. 460;
Sentencing Hr’g Tr. 2-3, Dec. 18, 2008, ECF No. 414 (accepting Sanders’s plea agreement).) At
Sanders’s sentencing hearing on December 18, 2008, the district court accepted the findings in his
Presentence Investigation Report (“PSR”), (Sentencing Hr’g Tr. 5, ECF No. 414), which classified
Sanders as a career criminal under U.S.S.G. § 4B1.1 based on his three prior convictions for felony
drug offenses: a conviction for possession of cocaine with intent to sell and two convictions for
felony possession of cocaine, all of which occurred in Tennessee in 2000, (PSR 9, 10-11). As a
result, Sanders’s offense level increased by twelve points, thereby increasing his Guidelines range
to 151 to 188 months’ imprisonment. (Id. at 9, 15; see also Sentencing Hr’g Tr. 5, ECF No. 414.)
The district court sentenced Sanders to a mid-range sentence of 169 months’ imprisonment.
(Sentencing Hr’g Tr. 23, ECF No. 414.) Sanders timely appealed.
Sanders argues that the district court erroneously used his prior convictions to enhance his
Guidelines range under U.S.S.G. § 4B1.1 in violation of the rule, announced in Apprendi and
extended in Booker, that “[i]t is unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of penalties to which a criminal defendant is
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No. 09-5017
United States v. Sanders
exposed.” Apprendi, 530 U.S. at 490 (internal quotation marks omitted). Sanders also contends that
the application of § 4B1.1 in his Guidelines calculation contravenes 21 U.S.C. § 851, which provides
that no person convicted of an offense under title 21 of the United States Code can be “sentenced
to increased punishment by reason of one or more prior convictions” unless, before trial or entry of
a guilty plea, the Government files an information with the court “stating in writing the previous
convictions to be relied upon.” 21 U.S.C. § 851(a)(1). Sanders did not raise these issues at
sentencing, even though the district court asked him for objections to both his PSR and sentence,
(see Sentencing Hr’g Tr. 5, 25-26); therefore, we review Sanders’s sentence for plain error. See
United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); see also United States v.
Copeland, 321 F.3d 582, 601 (6th Cir. 2003) (“Where a defendant fails to make an Apprendi
objection, this court must review the claim for plain error.” (citing United States v. Strayhorn, 250
F.3d 462, 467 (6th Cir. 2001))). To meet this standard, Sanders must show that the district court
made an “error” that is “clear or obvious,” “affect[s his] substantial rights,” and “‘seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.’” Puckett v. United States, 129
S. Ct. 1423, 1429 (2009) (second alteration in original) (quoting United States v. Olano, 507 U.S.
725, 736 (1993)).
Sanders’s claim that the district court’s application of the U.S.S.G. § 4B1.1 enhancement
runs afoul of the Supreme Court’s decisions in Apprendi and Booker is without merit. In Apprendi,
the Supreme Court specifically excepted prior convictions from the “facts” that the Constitution
requires be proven to a jury or admitted in a guilty plea: “[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
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No. 09-5017
United States v. Sanders
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis
added); see also Booker, 543 U.S. at 244 (“Accordingly, we reaffirm our holding in Apprendi: 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.” (emphasis added)). In fact, the Supreme
Court has explicitly held that a defendant’s prior convictions may be used to increase his maximum
sentence without violating the Constitution—at least when, as here, the fact of those convictions are
uncontested. Almendarez-Torres v. United States, 523 U.S. 224, 239-48 (1998). This decision
remains valid precedent. See Apprendi, 530 U.S. at 489-90 (“Even though it is arguable that
Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today
should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity
and we need not revisit it for purposes of our decision today to treat the case as a narrow exception
to the general rule . . . .” (footnote omitted)); Nichols v. United States, 563 F.3d 240, 243 n.1 (6th
Cir. 2009) (noting that Almendarez-Torres remains good law despite the suggestion in Apprendi that
it was wrongly decided), cert. denied, 130 S. Ct. 277 (2009). Therefore, it was not error, much less
plain error, for the district court to rely on Sanders’s prior felony drug convictions when imposing
his sentence.
Furthermore, even if prior convictions were “facts” that, under Apprendi, must be proven to
a jury or admitted in a guilty plea, their use at sentencing can violate the Constitution only if they
“increase[] the sentence that the defendant could have otherwise received.” Booker, 543 U.S. at 232.
In contrast, a judge may “exercise discretion—taking into consideration various factors relating both
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No. 09-5017
United States v. Sanders
to offense and offender—in imposing a judgment within the range prescribed by statute.” Apprendi,
530 U.S. at 481; see also Booker, 543 U.S. at 233 (“We have never doubted the authority of a judge
to exercise broad discretion in imposing a sentence within a statutory range.”). Thus, as the Supreme
Court determined in Booker, using judge-found facts to adjust a defendant’s sentence within a
prescribed statutory range, pursuant to advisory sentencing Guidelines, does not violate Apprendi.
Booker, 543 U.S. at 233, 259. Here, Sanders’s offense was subject to the twenty-year maximum
sentence proscribed for the substantive offense of conspiracy to distribute a controlled substance,
(see PSR 15), not the heightened, thirty-year maximum sentence that applies to that offense when
it is committed “after a prior conviction for a felony drug offense has become final.” 21 U.S.C.
§ 841(b)(1)(C).1 The district court’s application of § 4B1.1 to increase Sanders’s advisory
Guidelines range cannot give rise to an Apprendi claim, as it did not affect Sanders’s statutorily
authorized maximum sentence or otherwise result in the mandatory imposition of a higher sentence.
Similarly, Sanders’s arguments based on 21 U.S.C. § 851 are unavailing. Though the
Government did not file an information listing Sanders’s prior felony drug convictions before
Sanders entered his guilty plea, it did not need to do so before the district court could apply the
1
During the rearraignment hearing at which Sanders pleaded guilty, the Government
incorrectly stated that, “because of prior drug felony conviction [sic] in [his] record[],” Sanders was
“subject to an enhanced sentence which would be up to 30 years of imprisonment.” (Rearraignment
Tr. 19-20, ECF No. 460). It seems that Sanders’s original PSR incorporated this misstatement,
which in turn inflated his Guidelines range. However, Sanders objected to this error; as a result, the
Probation Officer revised Sanders’s PSR to reflect the correct twenty-year maximum sentence and
amended his Guidelines calculation accordingly. (Appellant’s Br. 5-6.) In sentencing Sanders, the
district court relied on the corrected PSR, thereby subjecting Sanders to the twenty-year maximum
sentence.
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No. 09-5017
United States v. Sanders
career-offender Guidelines enhancement. This Court has previously determined that “the
requirements of § 851(a)(1) apply only to statutory sentence enhancement, not sentence enhancement
under § 4B1.1 of the Sentencing Guidelines.” United States v. Mans, 999 F.2d 966, 969 (6th Cir.
1993). Because Sanders’s statutory maximum sentence was not increased by reason of his prior
conviction, there was no violation of § 851. “The government was therefore under no obligation to
inform the defendant of the potential applicability of Section 4B1.1 of the Sentencing Guidelines,
and its failure to provide such notice is not a basis for vacating the defendant’s sentence in this case.”
United States v. Wright, 43 F. App’x 848, 851 (6th Cir. 2002).
For the foregoing reasons, we AFFIRM the sentence imposed on Sanders by the district
court.
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