United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2015 Decided December 1, 2015
No. 12-3108
UNITED STATES OF AMERICA,
APPELLEE
v.
NATHANIEL LAW,
APPELLANT
Consolidated with 13-3038, 13-3077
Appeals from the United States District Court
for the District of Columbia
(No. 1:03-cr-00311-4)
(No. 1:03-cr-00311-1)
(No. 1:03-cr-00311-2)
Sylvia Royce, appointed by the court, argued the cause for
appellants. With her on the briefs were Christine Pembroke and
Allen Orenberg, also appointed by the court.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Vincent H. Cohen
Jr., Acting U.S. Attorney, and Elizabeth Trosman, John P.
Mannarino, and Kenneth F. Whitted, Assistant U.S. Attorneys.
2
Before: GARLAND, Chief Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: A jury convicted the appellants of
conspiring to traffic in narcotics and numerous related crimes.
The scope of the conspiracy, and the appellants’ role in
distributing powder cocaine, crack cocaine, and heroin over the
course of seven years, is detailed in the opinion of a panel of this
court that considered the appellants’ first appeal of their
convictions and sentences. See United States v. Law, 528 F.3d
888 (D.C. Cir. 2008). In that opinion, the court affirmed the
convictions in most respects, but reversed on one count per
appellant and remanded for resentencing. Id. On remand, the
district court sentenced all three appellants anew, and each now
raises a number of objections to his resentencing. We affirm the
appellants’ sentences in all respects.
I
The district court resentenced appellant William Farrell to
concurrent terms of 262 months on each of four counts and 240
months on the remaining count. The 262-month sentences were
substantially lower than the sentences the court originally
imposed on those counts in 2005.1 Farrell brings four challenges
to his sentences, three of which allege procedural error and one
of which alleges substantive error. He did not raise any of these
objections in the district court.
1
At their resentencings, both Farrell and co-defendant Carroll
Fletcher received lower sentences than they originally received
because the district court applied the comparatively less severe 2011
United States Sentencing Guidelines and the Fair Sentencing Act of
2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372.
3
When reviewing a sentence, this court “first ensure[s] that
the district court committed no significant procedural error, such
as failing to calculate (or improperly calculating) the [U.S.
Sentencing] Guidelines range . . . or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S.
38, 51 (2007). We then “consider the substantive
reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. Procedural challenges that a
defendant did not make in the district court are reviewed for
plain error only. United States v. Ransom, 756 F.3d 770, 773
(D.C. Cir. 2014). We review claims of substantive
unreasonableness under the abuse-of-discretion standard,
however, “regardless of whether an objection on those terms
was made” in the district court. Id. at 775.
Farrell’s first contention is that the district court erred by
failing to calculate the applicable Guidelines range. This
argument fails because it is factually incorrect. At resentencing,
the district court expressly incorporated all of the comments
about sentencing factors that it had made at the original
sentencing, Resentencing Hr’g Tr. 26 (J.A. 209), adopted the
Probation Office’s undisputed Presentence Investigation Report
(PSR), id. at 17 (J.A. 200), and stated that the undisputed
Guidelines range was 262 to 327 months, id. at 26-27 (J.A. 209-
10).2 The sentence the court imposed was the bottom of that
2
See also Farrell PSR at 5 (J.A. 321) (explaining the calculation
of the 262-to-327-month Guidelines range); Resentencing Hr’g Tr. 16
(J.A. 199) (statement by defense counsel that he had no objection to
the PSR); Def.’s Sentencing Mem. 1-2 (J.A. 180-81) (stating that
“[t]here do not appear to counsel to be material factual errors or
omissions to the U.S. Sentencing Guidelines computation” in the PSR
and that “Defendant’s counsel does not take issue with the [G]uideline
calculation of level 38, criminal history category II, which produces
a range of 262-327 months”).
4
range.
Second, Farrell contends that the district court erred, as part
of its Guidelines calculation (which he simultaneously claims
the district court never made), by increasing his Guidelines
offense level by four on the ground that he was an “organizer or
leader” of a drug trafficking organization. See United States
Sentencing Guidelines Manual (U.S.S.G.) § 3B1.1(a); see also
Law, 528 F.3d at 895 (observing that the district court had
applied the four-level enhancement at the original sentencing).
The court erred, Farrell maintains, because it never made the
findings required to characterize him as an “organizer or leader.”
But the reason the district court did not make its own
findings is that it had put the question to the jury in the form of
a special verdict, and the jury found that Farrell was an
organizer or leader. The court did not err in relying on the jury’s
finding because, although a court is permitted to make a
sentencing determination based upon a mere “preponderance of
the evidence,” see United States v. Fahnbulleh, 752 F.3d 470,
481 (D.C. Cir. 2014), the jury -- as the court instructed --
resolved the question beyond a reasonable doubt. See Trial Tr.
30 (Jan. 19, 2005, PM Session). Farrell nonetheless complains
that the jury failed to consider the specific factors that a
sentencing court must examine when determining whether a
defendant was an organizer or leader. But that is simply
incorrect. In fact, the court instructed the jury in haec verba
with respect to the factors set out in the Guidelines and this
court’s precedent. Compare Trial Tr. 30 (Jan. 19, 2005, PM
Session), with U.S.S.G. § 3B1.1 cmt. n.4, and United States v.
Quigley, 373 F.3d 133, 138 (D.C. Cir. 2004).
Third, Farrell contends that the court failed to consider
certain factors that, according to the Guidelines, may be relevant
in determining whether a departure is warranted. Appellants Br.
5
20. Specifically, Farrell claims that the court failed to consider
his “age and somewhat problematic health.” Id. (referencing
U.S.S.G. §§ 5H1.1 and 5H1.3). Again, this failure-to-consider
argument is factually incorrect: the district court expressly
considered both Farrell’s age and his health. See Resentencing
Hr’g Tr. 27 (J.A. 210). But in light of its consideration of other
relevant sentencing factors, the court simply disagreed with
Farrell’s view that his age and health justified a departure. Id.
In so doing, the court did not err. See Rita v. United States, 551
U.S. 338, 356 (2007) (stating that the sentencing judge need
only “set forth enough [reasons] to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority”);
see also id. at 345, 356 (finding no abuse of discretion where the
district court acknowledged the defendant’s ailments and then
announced that a bottom-of-the-Guidelines sentence was
“appropriate” and that it would not depart downward).
Finally, Farrell argues that his 262-month sentences on four
counts -- the bottom of the Guidelines range -- were
substantively unreasonable and that the court should instead
have sentenced him to the statutory mandatory minimum of 240
months’ incarceration. We review the reasonableness of a
sentence under a “deferential abuse-of-discretion standard,”
Gall, 552 U.S. at 40, and a “sentence within a properly
calculated Guidelines range is entitled to a rebuttable
presumption of reasonableness,” United States v. Dorcely, 454
F.3d 366, 376 (D.C. Cir. 2006); see Rita, 551 U.S. at 347
(authorizing appellate courts to apply such a presumption).
Farrell’s argument does nothing to rebut the presumption of
reasonableness. Indeed, we note that on Farrell’s first appeal,
this court held that his original, higher sentence of 324 months
was within the zone of reasonableness. See Law, 528 F.3d at
902-03.
6
II
Like his co-defendants, Nathaniel Law was convicted on
Count 1 of the indictment, which charged him with conspiracy
to distribute 5 kilograms or more of cocaine, 50 grams or more
of cocaine base, and 100 grams or more of heroin. See 21
U.S.C. §§ 841, 846. At resentencing, both the prosecutor and
defense counsel agreed that the court was required by statute to
sentence Law to life imprisonment on that count because of the
quantity of drugs involved and the fact that he had “two or more
prior convictions for a felony drug offense,” id. § 841(b)(1)(A).
See Resentencing Hr’g Tr. 20-21, 25-27 (J.A. 152-53, 157-59).
Accordingly, the court resentenced Law to life on Count 1. It
resentenced Law to concurrent terms of 212 months on the
remaining (subsidiary) counts. The sentence on each count was
the same as the sentence the court originally imposed.
Like Farrell, Law maintains for the first time on appeal that
the district court committed procedural error by failing to
calculate the applicable Guidelines range at resentencing. This
argument meets the same fate as Farrell’s because it is not
factually correct. At the resentencing, the district court
incorporated by express reference the Guidelines calculations it
had made at Law’s first sentencing -- as well as the reasons the
court had given for granting Law a downward departure from
the Guidelines range on the subsidiary counts. See Resentencing
Hr’g Tr. 28-29 (J.A. 160-61). Although nothing more was
required, there was more. The court’s Guidelines range was the
same as that recommended in the PSR for the resentencing,
which defense counsel stated he did not dispute, id. at 22 (J.A.
154), and which the district court adopted, id. at 24-25 (J.A.
156-57). Moreover, the sentence to which the defendant
principally objects, the life sentence on Count 1, was not a
Guidelines sentence at all. Rather, it was mandated by 21
U.S.C. § 841(b)(1)(A), which -- as Law’s trial counsel
7
acknowledged -- “trumps the Guidelines,” Resentencing Hr’g
Tr. 20 (J.A. 152).
Law also contends for the first time that the life sentence the
court imposed on Count 1 violates the Eighth Amendment
because it constitutes cruel and unusual punishment. This
contention is foreclosed by precedent. The Supreme Court
rejected it in Harmelin v. Michigan, 501 U.S. 957 (1991), and
this court, following Harmelin, likewise rejected it in United
States v. Walls, 70 F.3d 1323, 1328 (D.C. Cir. 1995). In its
recent opinion in Miller v. Alabama, the Supreme Court left
Harmelin undisturbed. See 132 S. Ct. 2455, 2470 (2012)
(“[L]ife without parole is permissible for nonhomicide offenses
-- except . . . for children. . . . Our ruling thus neither overrules
nor undermines nor conflicts with Harmelin.”).
III
Appellant Carroll Fletcher was resentenced to life
imprisonment on Count 1 because, like Law, he had “two or
more prior convictions for a felony drug offense”: one in 1987
and one in 1977. See 21 U.S.C. § 841(b)(1)(A). The court
imposed concurrent terms of 168 months on the remaining
counts. The sentence on Count 1 was the same as that originally
imposed; the remaining sentences were substantially lower than
those the court originally imposed. See supra note 1. Fletcher
raises five objections to his sentences, several of which he did
not raise below.
First, like his co-defendants, Fletcher contends that the
district court failed to calculate the applicable Guidelines range.
Fletcher’s argument fails because it is, again, factually incorrect.
See Resentencing Hr’g I Tr. 11-12 (June 5, 2013) (J.A. 232-33)
(statement by the court that Fletcher’s Guidelines range was
“168 to 210 months”); Resentencing Hr’g II Tr. 6 (July 26,
8
2013) (J.A. 248) (noting that “the [G]uideline range for a level
34 offense with a criminal history category of [II]” was 168 to
210 months); see also Fletcher PSR at 5 (calculating the same
Guidelines range); Resentencing Hr’g I Tr. 10 (J.A. 230)
(adopting the undisputed portions of the PSR).
Second, like Law, Fletcher argues that a life sentence for his
conviction on Count 1 violates the Eighth Amendment.
Fletcher’s argument is foreclosed by the same precedents that
foreclose Law’s. See supra Part II.
Third, Fletcher argues that his 1987 conviction, which
contributed to the enhancement of his sentence on Count 1, was
entered pursuant to an Alford plea,3 and that a conviction based
on such a plea is insufficient to establish a prior conviction
under 21 U.S.C. § 841(b). We have no need to consider whether
Fletcher’s argument about Alford pleas is legally sound because
it is not factually sound. The government has produced the
Judgment and Commitment Order for Fletcher’s 1987
conviction, which shows that the 1987 conviction was not the
result of a plea at all. Supp. App’x 37-38; see Law, 528 F.3d at
911 (explaining that the Government could satisfy its burden of
proving a conviction by producing the Judgment and
Commitment Order).
Fourth, Fletcher contends that his 1977 conviction, which
also contributed to the enhancement of his sentence on Count 1,
was set aside under the Federal Youth Corrections Act (FYCA),
18 U.S.C. § 5021 (1976), and hence should not have been
3
See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding
that “[a]n individual accused of crime may voluntarily, knowingly,
and understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in the acts
constituting the crime”).
9
considered in his sentencing on that count. Fletcher offers no
evidence that his 1977 conviction was set aside. Moreover, the
prior panel held that, “[e]ven assuming [Fletcher’s] 1977
conviction was set aside under the FYCA, . . . the conviction
still counts for purposes of sentencing under [21 U.S.C.]
§ 841(b),” Law, 528 F.3d at 909, and “the district court still must
take it into account in determining his sentence under § 841(b),”
id. at 910. That decision is the law of the case, see LaShawn v.
Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc), and
obviates the need for further discussion of this contention.
Finally, at oral argument Fletcher asserted -- for the first
time -- that there was a defect in the Judgment and Commitment
Order for his 1977 conviction that rendered improper any
reliance on that conviction for sentencing enhancement. The
alleged defect: the version of the order on the court’s Electronic
Case File system lacked a “second page” with the requisite
signature of the trial judge. See Supp. App’x 39. Although this
argument comes far too late, it contains a more fatal flaw: the
government has provided both this court and opposing counsel
with the missing “second page” -- and it does in fact contain the
signature of the district judge.4 Accordingly, we have no
grounds for questioning Fletcher’s sentence.
IV
For the foregoing reasons, we reject all of the appellants’
sentencing challenges and affirm the judgments of the district
court.
So ordered.
4
The entire document is actually one page, but because it was
originally printed on legal-size paper, it required two pages when
copied.