United States v. McCrimmon

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 21, 2006
March 20, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-61027

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DARNELL DESHAWN MCCRIMMON, aka DARNELL WILLIAMS, aka QUANELL SIMS,
aka DOMINIC ANDERSON, aka MARCUS THOMAS DAWSON, aka MONEY D.
MCCRIMMON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Mississippi

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

I

On February 3, 2003 Darnell McCrimmon, pursuant to a plea

agreement, plead guilty and was convicted of conspiring to possess

with the intent to distribute a mixture and substance containing

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)

and 846. Acceding to the fact statement supporting the guilty

plea, McCrimmon engaged in a transaction involving 287.3 grams of

cocaine base.
 The pre-sentence report (“PSR”) indicated an offense level 351

and a criminal history category I, resulting in a sentencing

guideline range of 168-210 months of imprisonment.

Prior to sentencing, McCrimmon filed objections to the PSR, as

to the amount of cocaine used to determine his base offense level.

Arguing that no weapons were involved in the offense, McCrimmon

also sought a downward adjustment in his offense level, pursuant to

the “safety valve” provision.2 The district court rejected these

objections and sentenced McCrimmon to 168 months of imprisonment,

followed by a three-year term of supervised release.

On direct appeal (“McCrimmon I”), McCrimmon complained that

the district court erred by not providing him safety-valve relief

and that the district court did not have jurisdiction to entertain

his guilty plea. McCrimmon did not allege error in the methodology

of calculating his sentence. On June 9, 2004, we affirmed

McCrimmon’s conviction. However, we vacated and remanded the case

for resentencing to allow the district court to correct its error

in concluding that the PSR had adequately considered that a firearm

1
In arriving at this conclusion, the probation officer calculated
McCrimmon’s base offense level by adding 412.3 grams of cocaine base, 214 ounces
of cocaine base, two kilograms of cocaine base, and 126.5 ounces of cocaine
powder. Then, converting the amounts to their marijuana equivalencies, the
probation officer determined that the base offense level should be based on
113,601.26 kilograms of marijuana–an offense level of 38. The probation officer
subtracted three levels for acceptance of responsibility, yielding a final
offense level of 35.
2
U.S.S.G. § 5C1.2.

2
was not used.3 This Court directed the district court, on remand,

to “fully explore whether McCrimmon satisfied the [safety-valve]

requirements.”4

On October 18, 2004, the district court conducted a second

sentencing hearing, at which time McCrimmon restated his safety-

valve objection and, also, contended that the district court

violated Blakely v. Washington5 by impermissibly basing his

sentence on an amount of drugs greater than the 287.3 grams of

cocaine to which McCrimmon had admitted. The district court,

relying on United States v. Pineiro,6 determined that Blakely was

inapplicable and held that McCrimmon did not qualify for the

safety-valve provision. Thus, the district court, again, sentenced

McCrimmon to 168 months of imprisonment. McCrimmon timely filed

notice of appeal.7

3
United States v. McCrimmon, 97 Fed. Appx. 484 at 486 (2004) (per curiam)
(“McCrimmon I”).
4
Id.
5
Blakely, 124 S.Ct. 2531 (2004) (invalidating a state guideline sentence
in violation of the Sixth Amendment where a defendant’s sentence was greater than
the maximum sentence allowed solely on the basis of facts found by the jury or
admitted by the defendant). Blakely was decided fifteen days after we decided
McCrimmon I.
6
Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), vacated, Pineiro v. United
States, 125 S.Ct. 1003 (2005). Pineiro was decided one month after we decided
McCrimmon I and three months prior to the resentencing hearing. Then, Pineiro
was overruled one month after the rendering of the district court’s final
judgment at the resentencing hearing.
7
In summary, the relevant events progressed, as follows: Sentenced April
17, 2003; McCrimmon I decided May 18, 2004; Blakely decided June 24, 2004;
Pineiro decided July 12, 2004; re-sentenced October 18, 2004; Booker decided
January 12, 2005; McCrimmon II argued September 29, 2005.

3
 II

This Court reviews a sentencing court’s decision to apply the

safety-valve provision of the sentencing guidelines, U.S.S.G. §

5C1.2, for clear error.8 A defendant is eligible for the safety-

valve reduction when the sentencing court finds that:

not later than the time of the sentencing hearing,
the defendant has truthfully provided to the
Government all information and evidence the
defendant has concerning the offense or offenses
that were part of the same course of conduct or of
a common scheme or plan, but the fact that the
defendant has no relevant or useful other
information to provide or that the government is
already aware of the information shall not preclude
a determination by the court that the defendant has
complied with this requirement.9

McCrimmon has the burden of showing that he is entitled to the

safety-valve adjustment.10

The government’s narcotic agent testified at the resentencing

hearing that McCrimmon was evasive during an interview, regarding

McCrimmon’s own offense. The agent questioned McCrimmon’s candor

during the proffer session because he gave answers inconsistent

with corroborated information provided by his codefendants

8
United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999); United
States v. Villanueva, 408 F.3d 193, 202-03 n.9 (5th Cir. 2005).
9
U.S.S.G. § 5C1.2(5) (only this requirement, the fifth of five elements,
is at issue in the present case); United States v. Rodriguez, 60 F.3d 193, 196
(5th Cir. 1995) (stating the safety-valve provision allows less knowledgeable and
less culpable defendants who have fully assisted the government by providing all
of the information they have to avoid the application of the statutorily
mandatory minimum sentence).
10
United States v. Brenes, 250 F.3d 290, 293 n.1 (5th Cir. 2001); United
States v. Flanagen, 80 F.3d 143, 146-47 (5th Cir. 1996).

4
concerning his own drug-trafficking. Moreover, McCrimmon ended the

interview when asked about certain people involved in distributing

the cocaine. Consequently, the district court found both that

McCrimmon had not been truthful regarding his own role in the

offense and that he had not provided all of the information within

his knowledge about the offense. The district court noted that the

premature termination of the proffer session was particularly

compelling.

We agree. The district court’s finding that McCrimmon had

been less than truthful is not clearly erroneous. The agent’s

testimony was sufficient to support the district court’s

independent determination that McCrimmon was not entitled to the

safety-valve adjustment.11 The district court did not err in

refusing a safety-valve adjustment.

III.

McCrimmon also contends that his case should be remanded for

resentencing pursuant to United States v. Booker,12 in order to

allow the district court the opportunity to sentence him under a

non-mandatory guidelines regime and without considering any

unproven quantity of narcotics.

In response to a properly preserved objection pursuant to

11
United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (stating that
uncorroborated hearsay testimony may be relied upon at sentencing).
12
125 S.Ct. 738 (2005).

5
Booker, this Court “will ordinarily vacate the sentence and remand,

unless [it] can say the error is harmless under [FED.R.CRIM.P.

52(a)].”13 “The government must bear the burden of demonstrating

beyond a reasonable doubt that the federal constitutional error of

which the defendant complains did not contribute to the sentence he

received.”14 If, however, the objection was not properly preserved,

the plain error standard applies.15 In order to establish plain

error, the defendant must show (1) error, (2) that is clear or

obvious, and (3) that affects substantial rights.16 Moreover,

“‘[i]f all three conditions are met an appellate court may then

exercise its discretion to notice a forfeited error but only if (4)

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’”17 Therefore, we must

determine the applicable standard of review–-decide whether

McCrimmon properly preserved a Booker-type assertion of error.18

At the time of McCrimmon’s first sentencing, neither Blakely

13
United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005) (internal
quotations and citations omitted).
14
Id. at 377.
15
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
16
Id.
17
Id. (quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
18
Though the government concedes clear error in the district court’s
application of the sentencing guidelines as mandatory rather than advisory,
McCrimmon did not preserve his assertion of Fanfan-type error either on direct
appeal or during the resentencing hearing, and he cannot meet the plain error
burden (see infra IV).

6
nor Booker had been decided. Though not expressly alleging a Sixth

Amendment violation, McCrimmon asserts that he preserved his

argument for appeal, as a result of an objection wherein McCrimmon

contested the consideration of facts pertaining to any quantity of

drugs exceeding the 287.3 grams of cocaine that McCrimmon admitted

selling to the government informant. McCrimmon’s objection at the

sentencing hearing sufficiently invokes the alleged Booker error.19

McCrimmon, however, did not assert a Blakely-type error on

direct appeal, and we subsequently issued a remand order concerning

only the safety-valve provision. At the resentencing hearing on

remand, McCrimmon, again, raised the objection concerning the

quantity of drugs used in his sentencing determination, this time

citing Blakely. Never passing on the scope of remand, the district

court cited Pineiro, ruling on the merits of the objection that

Blakely was inapplicable to the federal sentencing guidelines.20

On this appeal, McCrimmon, citing Booker, argues that the objection

has been preserved and that the proper standard of review is set

forth in United States v. Akpan, wherein we held that this Court

will vacate and remand unless the error is harmless.21

19
But cf. United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005)
(concluding that the defendant did not preserve a Booker claim because he did not
make a constitutional objection at sentencing, which includes citing Apprendi,
the Sixth Amendment, or the defendant's right to have facts found by a jury
instead of a judge), cited in, United States v. Pineiro, 410 F.3d 282, 286 (5th
Cir. 2005).
20
Pineiro, 377 F.3d at 473.
21
Akpan, 407 F.3d at 376.

7
 The government, however, argues that consideration of

McCrimmon’s objection was outside the scope of our remand order and

that McCrimmon’s objection to the PSR at the resentencing hearing

was, therefore, impermissibly raised.22 Consequently, the

government urges that the plain-error standard controls.23

Moreover, the government contends that McCrimmon has failed to

carry his burden of demonstrating plain error.

The scope of our mandate in McCrimmon I, vacating McCrimmon’s

sentence, determines whether McCrimmon rightfully renewed his

Blakely-type objection at the second sentencing hearing.24 We find

that a Blakely-type objection exceeds the scope of this Court’s

prior order remanding the case on non-Booker-type grounds.

A district court on remand “must implement both the letter and

the spirit of the appellate court’s mandate and may not disregard

the explicit directives of that court.”25 Additionally, pursuant

to the “waiver approach” to the mandate rule:

[t]he only issue on remand properly before the district
court are those issues arising out of the correction of
the sentence ordered by this court. In short, the
resentencing court can consider whatever this court

22
See United States v. Marmolejo, 139 F.3d 528, 530 (5th Cir. 1998).
23
Mares, 402 F.3d 511, 520.
24
“Thus, we affirmed the district court’s refusal to reconsider its
initial enhancement for obstruction of justice, because the defendant had not
appealed that enhancement in Marmolejo I and it did not arise out of our mandate
in Marmolejo I.” United States v. Matthews, 312 F.3d 652, 658 (5th Cir. 2002)
(“Matthews II”) (emphasis added).
25
Id. at 657 (internal quotations and citation omitted).

8
 directs–-no more, no less. All other issues not
arising out of this court’s ruling and not raised
before the appeals court, which could have been brought
in the original appeal, are not proper for
reconsideration by the district court below.26

The mandate rule is but a corollary to the law of the case

doctrine.27 There are three exceptions to the mandate rule: “(1)

the evidence at a subsequent trial is substantially different; (2)

there has been an intervening change of law by a controlling

authority; (3) the earlier decision is clearly erroneous and would

work a manifest injustice.”28

The mandate in McCrimmon I directed the district court to

fully explore whether McCrimmon met the safety-valve requirements:

Accordingly, we VACATE McCrimmon’s sentence and REMAND to
the district court. Upon remand, the district court
should fully explore whether McCrimmon satisfied the
requirements of U.S.S.G. § 5C1.2.
VACATED AND REMANDED IN PART; AFFIRMED IN PART.29

This mandate cannot be said to allow a subsequent Blakely

challenge, absent the application of one of the three exceptions to

26
Marmolejo, 139 F.3d at 531 (refusing to require a de novo resentencing
hearing in which the district court could (re)consider every legal and factual
ground for the sentence).
27
United States v. Lee, 358 F.3d 315, 320 (2004) (“The law of the case
doctrine...is an exercise of judicial discretion which ‘merely expresses the
practice of courts generally to refuse to reopen what has been decided,’ not a
limit on judicial power. The doctrine, therefore, ‘is not inviolate,’ but rather
permits an appellate court or a district court on remand to deviate from a ruling
made by a court of appeal in an earlier stage of the same case in certain
exceptional circumstances” (internal citations omitted).).
28
Matthews, 312 F.3d at 657. McCrimmon does not argue the first or third
exception. Regardless, the present case does not support the first exception and
the ruling of McCrimmon I is not clearly erroneous since the Blakely-type issue
was not before the court.
29
McCrimmon, 97 Fed. Appx. at 486.

9
the mandate rule. Though other circuits have a less restrictive

rule, “‘only those discrete, particular issues identified by the

appeals court for remand are properly before the resentencing

court’” in the Fifth Circuit.30

The second mandate rule exception, the only potentially

applicable basis for relief, turns on the legal landscape at the

time of the order. After McCrimmon I, upon resentencing, both

Blakely and Pineiro had been decided, but Booker had not. The

rulings of our Sister Circuits are instructive in this matter.

Both the Tenth and Eighth Circuits have addressed whether Blakely

claims exceed the scope of prior remand orders, and each circuit

reached a different conclusion. The Tenth Circuit held a Sixth

Amendment objection within the scope of remand, noting that the

remand order was general and that Blakely presented an “exceptional

circumstance” constituting “a dramatic change in the legal

landscape....”31 The Eighth Circuit, however, determined that a

30
Matthews, 312 F.3d at 658 (quoting Marmolejo, 139 F.3d at 530).
Moreover, nothing prohibited McCrimmon from raising the objection on direct
appeal and adherence to the remand order itself did not create the constitutional
error. But cf. Lee, 358 F.3d at 323-324 (allowing the government to raise its
objection, textually outside the scope of the remand order, because the issue was
at no time previously appealable).
31
United States v. Lang, 405 F.3d 1060, 1064 (10th Cir. 2005) (“Lang II”)
(“Our mandate stated: ‘Based on the foregoing, we REVERSE the district court’s
downward departures for both Langs, remanding both cases for resentencing
pursuant to 18 U.S.C. § 3742(f)(2)(B), and AFFIRM....’”); see also United States
v. Puche, 2005 U.S. App. LEXIS 25375, 11-13 (11th Cir. 2005) ( “This Court's
limited mandate was clear and explicit -- the district court was directed to
‘apply [] the three-level reduction under U.S.S.G. § 2X1.1 (b)(2) and then
resentence within the resulting U.S.S.G. range.’ In so directing, this Court
necessarily concluded that the Sentencing Guidelines were to be applied in a
mandatory fashion...Since this Court's limited mandate was issued, the Supreme

10
Blakely claim raised for the first time on appeal following

resentencing was beyond the scope of the remand order and refused

to entertain the objection.32

The Tenth Circuit’s approach in Lang II is consistent with

this Court’s exception to the mandate rule enunciated in Matthews

II, allowing issues to be considered when there is an intervening

change in the law.33 In Matthews II, we decided that the

consideration of whether the necessary facts for a carjacking

enhancement needed to be pleaded in the indictment and proven to a

jury beyond a reasonable doubt was not beyond the scope of the

mandate, due to a change in the law regarding statutory sentences

wrought by Apprendi v. New Jersey.34 However, Matthews II can be

Court decided Blakely and Booker -- controlling authority that requires a
contrary conclusion. Consequently, the Blakely/Booker issue in this case falls
within an exception to the mandate rule and the law-of-the-case doctrine”
(internal citations omitted).).
32
United States v. Walterman, 408 F.3d 1084, 1085 (8th Cir. 2005) (the
remand order reads: “For the reasons stated herein, we affirm in part, reverse
in part, and remand for resentencing without application of the career offender
enhancement”) (citing U. S. v. Stuckey, 255 F.3d 528, 531 (8th Cir. 2001)
(stating “[a] defendant does not receive a second chance to support an argument
he failed to support in a first appeal simply because he is resentenced")); see
also United States v. Alaniz, 413 F.3d 877 (8th Cir. 2005) (The remand order
instructed the district court “to determine what sentence it would have imposed
when originally sentencing Alaniz if it had been faced with the correct
Guidelines imprisonment range of 210-262 months. If the district court
determines that it would have imposed a sentence of less than 20 years in prison,
the court is instructed to resentence Alaniz to that lesser prison term.”), cert.
denied, Alaniz v. United States, 126 S.Ct. 291 (2005).
33
Matthews, 312 F.3d at 657.
34
Id. at 663 (The mandate reads: “We vacate Matthews’ sentence for
carjacking and remand to the district court for re-sentencing consistent with
Jones and the lower maximum imprisonment of § 2119(1).”); See Apprendi, 530 U.S.
466 (2000).

11
distinguished from both Lang II and the instant case because the

defendant in Matthews II raised the enhancement objection on direct

appeal.35 Thus, Apprendi directly repudiated Matthews I.36 The

instant case can also be distinguished from both Walterman,37 the

Eighth Circuit case affirming the defendant’s sentence, and Mares,38

on which the government relies here, because McCrimmon did raise

the Blakely objection at both sentencing hearings.39

Ultimately, we find that Blakely does not satisfy the

requirements of the intervening law exception to the mandate rule

as applied in this case because the constitutional argument

existed, as applied in Apprendi40 and as evidenced by McCrimmon’s

35
Matthews, 312 F.3d at 657; United States v. Lang, 364 F.3d 1210, 1219-
20 (10th Cir. 2004) (“Lang I”), vacated, Lang v. United States, 125 S.Ct. 986
(2005).
36
Matthews, 312 F.3d at 657. No subsequent case overrules McCrimmon I.
Booker extended the holding of Blakely to the federal sentencing guidelines, thus
overruling Pineiro I–on which the district court relied. Thus, subsequent
caselaw invalidates the district court’s rationale on remand–reasoning that
should not have been relied upon, given the narrowly tailored remand order.
37
Walterman, 408 F.3d at 1085 (“Walterman did not advance such a claim
before the district court during his first sentencing proceeding, in his first
appeal, or in his second sentencing proceeding.”).
38
Mares, 402 F.3d at 516 (“Mares did not object to his sentence on this
basis in the district court and raises it for the first time on direct appeal.”).
39
At the first sentencing hearing McCrimmon objected “to the additional
quantities and the facts that–and the facts that those amounts–were not seized
nor waived.” At the second sentencing hearing McCrimmon filed a written
objection, citing Blakely.
40
Though not dispositive of the issue because the holding concerned state
sentencing guidelines, Apprendi did provide the logical framework for a Booker-
type objection on appeal, as to the federal sentencing guidelines. See 530 U.S.
466.

12
objection at the first sentencing hearing directed precisely at

that constitutional transgression. Yet also, Blakely was not

controlling authority over the instant matter since it applies only

to state sentencing guidelines.41 Consequently, citing Pineiro at

the suggestion of the prosecutor upon resentencing, the district

court was without discretion to rule on the merits of McCrimmon’s

Blakely objection, as it was beyond the scope of our remand order.42

Finding that the mandate was limited and that no exception to

the mandate rule then applied, a timely objection had to have been

made on direct appeal in order for this Court to apply the

requested Booker relief; harmless error review is inappropriate.

We conclude that McCrimmon forfeited and could not timely revive

his objection upon resentencing, in light of the narrow scope of

our resultant mandate.43

41
In two unpublished opinions from December 2004, this Court refused to
reach Blakely arguments beyond the scope of their respective remand orders, never
addressing the exceptions to the mandate rule. United States v. Floyd, 122 Fed.
Appx. 98 (5th Cir. 2004), cert. denied, 541 U.S. 1054 (2004); United States v.
Taylor, 117 Fed. Appx. 361 (5th Cir. 2004).
42
“Whether the law of the case doctrine foreclosed the district court's
exercise of discretion on remand and the interpretation of the scope of this
court's remand order present questions of law that this court reviews de novo.”
Lee, 358 F.3d 315, 320 (5th Cir. 2004) (citing Sobley v. Southern Natural Gas
Co., 302 F.3d 325, 332 (5th Cir. 2002)).
43
See United States v. Vanorden, 414 F.3d 1321 (11th Cir. 2005) (per
curiam), cert. denied, Vanorden v. United States, 126 S.Ct. 633 (2005)
(discussing the difference between forfeiture and waiver in the Booker context);
see also United States v. Buonocore, 416 F.3d 1124, 1133-1142 (10th Cir. 2005).

13
 McCrimmon may possibly have waived his Booker-type objection,44

for failure to raise it on direct appeal, despite having raised it

at both sentencing hearings–-thus distinguishing the instant case

from Walterman and other Fifth Circuit cases.45 Since Pineiro had

not yet been decided prior to McCrimmon I, it did not, therefore,

constitute directly opposing precedent, rendering a Booker-type

objection futile.46 Moreover, McCrimmon recognized the potential

merit of the argument by objecting to the unproven quantity of

narcotics at the first sentencing hearing.47 McCrimmon proffers no

viable explanation or extraordinary circumstance for failing to

raise the Blakely-type objection on the first appeal to this Court.

We do not, however, decide whether waiver or plain-error review

applies to the alleged constitutional violation because the

44
Procedural default rules are not trumped by the retroactivity of later
decided cases. See Martinez v. Tex. Dep’t of Crim. Justice, 300 F.3d 567 (5th
Cir. 2002); see also United States v. Ardley, 273 F.3d 991 (11th Cir. 2001) (en
banc) (holding that even a remand by the Supreme Court for reconsideration in
light of an intervening [Supreme] Court opinion does not require the court to
consider an argument raised for the first time in a petition for [writ] of
certiorari), cited in, United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005)
(per curiam).
45
See United States v. Higginbotham, 137 Fed. Appx. 665, 666 (5th Cir.
2005) (per curiam) (stating that defendant abandoned his Booker argument, raised
for the first time in a petition for writ of certiorari); see United States v.
Hernandez-Gonzalez, 405 F.3d 260 (5th Cir. 2005) (per curiam) (stating “[a]bsent
extraordinary circumstances, this court will not consider [Booker] issues raised
for the first time in a petition for rehearing”).
46
"Because any objection...would have been overruled based on existing
precedent, such an objection would have been futile. ‘This Court has made clear
that counsel is not required to make futile motions or objections." Johnson v.
Cockrell, 306 F.3d 249, 255 (5th Cir. 2002) (quoting Koch v. Puckett, 907 F.2d
524, 527 (5th Cir. 1990)).
47
But cf. United States v. Hass, 199, F.3d 749, 753 (5th Cir. 1999) (“An
issue is not waived if there was no reason to raise it in the initial appeal.”).

14
distinction is not outcome determinative.

IV

Assuming, in favor of McCrimmon, that waiver does not apply,

he cannot, in any event, establish plain error. McCrimmon can

satisfy the first two elements of the plain-error analysis. The

Supreme Court has determined that “[a]ny 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 the

jury beyond a reasonable doubt.”48 Consequently, the evidence

relied upon by the district court at the sentencing hearings, then

confined by the mandatory guideline regime, constitutes a violation

of McCrimmon’s constitutional rights.

The conspiracy count of McCrimmon’s indictment did not contain

an amount of cocaine base. McCrimmon’s plea agreement did not

indicate any particular amount of cocaine base, and, in fact,

acknowledged that McCrimmon pled guilty pursuant to 21 U.S.C. §

841(b)(1)(C)–-applicable to amounts of cocaine base less than five

grams and imposing a term of imprisonment of no more than 20 years.

During the recitation of the factual basis for the plea, to which

McCrimmon acquiesced, the prosecutor stated that McCrimmon had

provided 287.3 grams of cocaine base to the Government’s

48
Booker, 125 S.Ct. 738 (2005).

15
confidential informant. The amount of cocaine used to calculate

McCrimmon’s sentence, more than 2,400 grams, was neither proved by

admission nor found beyond a reasonable doubt by a jury.

Therefore, McCrimmon’s 168-month mandatory guideline sentence,

based on an unproven quantity of drugs, violates the Sixth

Amendment and constitutes error that is clear or obvious.49

However, McCrimmon fails to satisfy the third element of the

plain error inquiry. “The standard for determining whether an

error affects substantial rights...requires a showing that the

error "’must have affected the outcome of the district court

proceedings.’"50 “To meet this standard the proponent of the error

must demonstrate a probability ‘sufficient to undermine confidence

in the outcome.’"51

An amount of cocaine base of at least 150 grams but less than

500 grams–-inclusive of 287.3 grams--results in an offense level of

34.52 Subtracting the three levels for acceptance of

responsibility, the total offense level is 31, for which the

sentencing range is 108-135 months of imprisonment. Even though,

McCrimmon’s guideline range would be significantly reduced–-even

49
See Booker, 125 S. Ct. at 756.
50
Mares, 402 F.3d at 521 (quoting United States v. Olano, 507 U.S. 725,
734 (1993)).
51
Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004)).
52
U.S.S.G. § 2D1.1(c)(3).

16
the maximum sentence of 135 months would be significantly less than

the 168 months to which McCrimmon was sentenced–-neither the

sentencing transcripts nor evidence adduced at oral argument

indicates that the district court would have sentenced McCrimmon to

less than the 168 months of imprisonment, had it not been curtailed

by the applicable guideline range for the sentence.53 McCrimmon,

therefore, cannot demonstrate prejudice–-that his sentence would

have been any different or that the Sixth Amendment violation

necessarily contributed to the sentence.

AFFIRMED.

53
“‘...if the effect of the error is uncertain so that we do not know
which, if either, side it helped the defendant loses.’” Mares, 402 F.3d at 521
(quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005)).

17