[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 9, 2005
No. 04-15251 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00022-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS LEE MANGO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 9, 2005)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
Curtis Lee Mango appeals his sentence imposed after he pled guilty to
possession of controlled substances, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii), (C), (D) (count one), possession of a firearm in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) (count two), and
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (count three). Mango raises two arguments on appeal: (1) the district
court erred in refusing to grant a downward departure under U.S.S.G. § 4A1.3(b);
and (2) he is entitled to be resentenced in light of United States v. Booker, 125
S. Ct. 738 (2005). We lack jurisdiction to consider the district court’s denial of
Mango’s motion for downward departure, but we vacate Mango’s sentence and
remand for resentencing under Booker.
I. BACKGROUND
Mango was sentenced after the Supreme Court’s decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004), but before its decision in Booker. Mango’s
plea agreement contained the following language, which was intended to address
the question Blakely raised concerning the constitutionality of the Sentencing
Guidelines:
To the extent that such a right is determined to exist, the defendant
waives any right he may have to have any fact or issue related to
sentencing be determined by a jury beyond a reasonable doubt. The
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defendant consents and agrees that the Court will decide, by a
preponderance of the evidence, all factual and legal issues that may
impact upon a determination of the range of imprisonment under the
United States Sentencing Guidelines. . . .
At the plea colloquy, Mango agreed in all material respects with the
Government’s statement of the facts, which included the drug quantity involved in
his offense. At sentencing, Mango did not object to the drug quantity listed in the
PSI or to the Guidelines calculations and admitted he had three prior felony drug
convictions. Mango moved for a downward departure under U.S.S.G. § 4A1.3(b),
arguing his criminal history category substantially over-represented the
seriousness of his criminal history. The district court denied the motion.
Mango’s base offense level for count one was 28, reflecting a total
marijuana equivalent of 456.25 kilograms involved in his offense. The base
offense level was enhanced to 37 under U.S.S.G. § 4B1.1(b) because Mango had
at least two prior felony drug convictions. It was then reduced by 3 levels for
acceptance of responsibility, resulting in a total offense level of 34. With a
criminal history category of VI, as established by U.S.S.G. § 4B1.1(b), Mango’s
Guidelines sentence for count one ranged from 262 to 327 months’ imprisonment.
Count two carried a minimum 60 month consecutive sentence. Count three, which
was grouped with count one pursuant to U.S.S.G. § 3D1.2(d), carried a statutory
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maximum of 120 months’ imprisonment. Mango was sentenced to 322 months’
imprisonment, consisting of 262 months for count one, 60 months consecutive
sentence for count two, and 120 months for count three to run concurrently.
II. DISCUSSION
A. Downward Departure
Mango argues the district court erred in denying his motion for downward
departure under U.S.S.G. § 4A1.3(b). In United States v. Winingear, 422 F.3d
1241, 1245–46 (11th Cir. 2005), this Court reaffirmed our pre-Booker precedents
establishing that, under 18 U.S.C. § 3742(a), we lack jurisdiction “to consider a
defendant’s appeal of a discretionary decision of the district court to not apply a
downward departure, so long as the district court did not incorrectly believe that it
lacked the authority to apply a departure.” Winingear, 422 F.3d at 1245 (citing
United States v. Hadaway, 998 F.2d 917, 919 (11th Cir. 1993) and United States v.
Gomez-Villa, 59 F.3d 1199, 1202 (11th Cir. 1995)). The parties agree the district
court recognized its authority to depart downward, and we may not review its
decision.
B. Booker
Under Booker, there are two kinds of sentencing errors: constitutional and
statutory. A constitutional error is “the use of extra-verdict enhancements to reach
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a guidelines result that is binding on the sentencing judge; the error is the
mandatory nature of the guidelines once the guidelines range has been
determined.” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005)
(quotation and citation omitted). Statutory error occurs when a district court
sentences a defendant “under a mandatory Guidelines scheme, even in the absence
of a Sixth Amendment enhancement violation.” Id. at 1330–31.
We assume plain-error review applies. Under plain-error review, we may
not vacate a sentence:
unless there is: (1) error, (2) that is plain, and (3) that affects
substantial rights. If 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.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied 125 S.
Ct. 2935 (2005) (quotations and citations omitted).
1. Constitutional Error
Mango’s sentence was enhanced based on his past convictions and the drug
quantity involved in his offense. A district court does not violate the Sixth
Amendment by relying on past convictions to enhance a defendant’s sentence.
Shelton, 400 F.3d at 1329. Further, the Sixth Amendment is not violated where a
defendant’s sentence is enhanced by facts admitted by him. Id. at 1330. Mango
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admitted the drug quantities involved in his offense when he agreed with the
Government’s statement of the facts and when he did not object to the PSI.
Accordingly, even without the express waiver of his right to have any facts related
to sentencing determined by a jury beyond a reasonable doubt, Mango’s
constitutional rights were not violated.
2. Statutory Error
The Government argues the waiver in Mango’s plea agreement
encompasses statutory error as well. We disagree. A plain reading of the plea
agreement shows Mango waived his right to have the facts affecting his sentence
found by a jury beyond a reasonable doubt. The plea agreement, however, does
not show Mango waived his right not to be sentenced under a mandatory
Guidelines scheme.1 Thus, Mango did not waive statutory error.
Mango meets both the first and second prongs of plain-error review for
statutory error because he was sentenced under a mandatory Guidelines system.
Id. at 1330–31. Mango also satisfies his burden of showing the error affected his
substantial rights. At sentencing, the court said:
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Mango’s plea agreement also states: “The parties acknowledge that the Sentencing
Guidelines apply. The District Court’s discretion in sentencing is limited only by statutory
provisions and the Sentencing Guidelines.” This is not an adequate expression of Mango’s intent
to waive his right not to be sentenced under a mandatory Guidelines scheme.
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I do not make any determination of the sentence that I would impose
in the event it were held that Blakely affects the sentencing
guidelines. If the decision in Booker is affirmed, then the sentence I
impose today should be reversed, and this case should come back.
The district court’s comments establish “a reasonable probability of a different
result if the guidelines had been applied in an advisory instead of binding fashion
by the sentencing judge in this case.” Id. at 1332 (quotations omitted). We
conclude the fourth prong of plain-error review is also met and exercise our
discretion to notice the error. Id. at 1333.
III. CONCLUSION
We lack jurisdiction to review the district court’s denial of Mango’s motion
for downward departure under U.S.S.G. § 4A1.3(b). However, the district court
plainly erred in treating the Guidelines as mandatory. Thus, we vacate and remand
for resentencing in light of Booker. We note the district court correctly calculated
Mango’s effective Guidelines range of 322 to 387 months’ imprisonment. See
United States v. Crawford, 407 F.3d 1174, 1178–79 (11th Cir. 2005) (stating after
Booker, district courts must consult the Guidelines and “[t]his consultation
requirement, at a minimum, obliges the district court to calculate correctly the
sentencing range prescribed by the Guidelines”). Thus, on remand, the district
court is required to sentence Mango according to Booker, considering the
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Guidelines advisory range of 322 to 387 months’ imprisonment and “other
statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).” Booker, 125
S. Ct. at 757.2
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
2
We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold Mango met his burden of showing plain
statutory error. We also do not attempt to decide now whether a particular sentence might be
reasonable in this case.
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