UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD TAYLOR,
Defendant - Appellant.
No. 08-5039
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CEDRIC TAYLOR,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00102-F-1; 5:07-cr-00102-F-2)
Argued: January 29, 2010 Decided: March 22, 2010
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, modified in part, and
remanded by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Motz and Judge Gregory joined.
ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina; Marilyn G.
Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for
Appellants. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
Appellants Donald and Cedric Taylor were convicted on drug
trafficking and witness tampering charges and were sentenced
accordingly in the United States District Court for the Eastern
District of North Carolina. They now appeal their convictions
and sentences. Together, they assert that the district court
erred in (1) denying their motions for judgment of acquittal on
the witness tampering charge; (2) sentencing them to 240 months
on the witness tampering charge; and (3) failing to provide an
adequate explanation for their sentences. In addition, Cedric
Taylor alleges error in the district court’s admission of
laboratory reports without the testimony of the lab technician,
and Donald Taylor alleges error in the district court’s refusal
to apply a sentencing guidelines adjustment for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a). We conclude that
the district court provided an inadequate explanation of the
sentence imposed on Cedric Taylor. Accordingly, we vacate the
sentence and remand for further proceedings as to him.
Furthermore, we find, as the government concedes, that the lower
court erred when it imposed 240-month sentences on the witness
tampering charge. In all other respects, for the reasons
explained within, we affirm.
3
I.
The Appellants were charged in a six-count superseding
indictment for conspiracy to distribute and possess with intent
to distribute more than 50 grams of crack cocaine, in violation
of 21 U.S.C. § 846 (Count One); distribution of more than 50
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(Counts Two and Three) (Donald Taylor only); tampering with a
witness through threats of physical force, in violation of 18
U.S.C. § 1512(a)(2)(C) (Count Four); attempting to kill a
witness, in violation of 18 U.S.C. § 1512(a)(1)(C) (Count Five);
and attempting to kill a witness in retaliation, in violation of
18 U.S.C. § 1513(a)(1)(B) (Count Six). Donald Taylor pleaded
guilty to the drug counts (Counts One through Three) and not
guilty to the tampering counts (Counts Four through Six); Cedric
Taylor pleaded not guilty to all counts. The jury convicted
Donald Taylor on Count Four (witness tampering through threats)
and found Cedric Taylor guilty of Counts One (drug conspiracy)
and Four. The jury found both Appellants not guilty of Counts
Five and Six.
The district court sentenced Donald Taylor to 360-months of
imprisonment on the drug counts and 240-months imprisonment on
witness tampering, the sentences to run concurrently. The
district court sentenced Cedric Taylor to concurrent 240-month
terms of imprisonment on the drug and tampering counts. The
4
defendants filed timely notices of appeal and we have
consolidated the appeals. We have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 3742.
II.
In 2006, the Cumberland County Bureau of Narcotics and the
United States Drug Enforcement Administration launched a drug
distribution investigation in Fayetteville, North Carolina. The
investigation revealed that, along with others, Donald Taylor
ran a drug distribution ring in Cumberland County.
A.
The Appellants do not challenge the sufficiency of the
evidence as to their narcotics convictions; accordingly, we
briefly summarize that portion of the government’s proof. The
government’s principal trial witness was Bobby Bunnells, a drug
dealer and police informant. 1 He testified that in 2000, he began
1
Several other drug dealers and drug users testified at
trial. According to Thomas Hanson, between October 2003 and
March 2004, he sold cocaine or crack to Donald Taylor between 13
to 16 times and he always saw drug traffic at the Taylors’s
residence. Torrey Robinson testified that, between 2002 and
2005, he sold Donald Taylor cocaine and crack more than 20
times. He sold Donald Taylor drugs in front of Cedric Taylor’s
residence while Cedric was present. He also witnessed Cedric
Taylor sell drugs. Ronnie Bowman testified that he bought crack
from Donald Taylor several times, and sold Cedric Taylor
marijuana. Bowman also witnessed Cedric Taylor selling drugs.
Camilo Garza purchased crack from Donald and Cedric Taylor in
2005. Garza testified that lots of drug users stayed at the
Taylors’s residence and used drugs there.
5
to sell 300 to 500 pounds of marijuana per month. In 2001, he
met Donald Taylor, who had purchased a trailer home from
Bunnells’s father. That same year, Donald Taylor began to
purchase marijuana, and eventually (in 2003), cocaine and crack
cocaine from Bunnells. Bunnells supplied Donald Taylor with
crack cocaine on a weekly basis until the middle of 2004. During
drug deals at Donald Taylor’s trailer, Bunnells observed
significant traffic going to the Taylor residence to purchase
drugs. He saw buyers knock on the trailer door and request
crack, and he saw Donald Taylor’s girlfriend sell them crack.
Bunnells also witnessed Cedric Taylor assisting Donald Taylor in
his drug enterprise. He saw Cedric Taylor work the door at the
trailer, weigh the crack, and hand the crack to customers.
Bunnells stopped selling drugs to Donald Taylor in mid-2004
after he repeatedly saw police in the vicinity. When law
enforcement officers arrested Bunnells in 2006, Bunnells began
to cooperate in drug investigations as a confidential informant.
In this capacity, he sought to buy drugs from Donald Taylor.
Having been out of the drug trade for some time, Bunnells
employed his niece, Crystal Powell, to reconnect him with Donald
Taylor. Powell was an admitted crack addict; she spent time at
the Taylor residence in 2006 and early 2007, sometimes staying
with them and sometimes prostituting herself to them for drugs.
Powell facilitated contact between Donald Taylor and her uncle,
6
and Donald Taylor agreed to meet Bunnells and sell him crack.
Bunnells and Donald Taylor met on September 14, 2006, whereupon
Donald Taylor (who had no drugs readily available) took Bunnells
to another drug dealer’s residence, purchased two and a quarter
ounces of crack with $1400.00 supplied to Bunnells by
investigators, and gave the crack to Bunnells when they arrived
back at Taylor’s residence. On October 23, 2006, Bunnells made a
second purchase, this time of four and a half ounces of crack (a
so-called “Big 8”) from Donald Taylor for $4000.00 in government
funds. Cedric Taylor was present during the second transaction. 2
B.
The witness tampering and attempted murder charges arose
from events occurring several months after the above-described
drug purchases by Bunnells from Donald Taylor. Based on the
following evidence, the government theorized that the Appellants
learned that Bunnells was cooperating with investigators and
undertook to kill him.
2
During the investigation, agents executed at least two
search warrants at properties controlled by the Appellants. On
August 4, 2006, they executed a search warrant at a trailer used
as a dope house, seizing an armored vest, a loaded gun, digital
scales, and fliers advertising the sale and distribution of
crack by Donald Taylor. On January 23, 2007, they executed a
search warrant at Donald Taylor’s residence. Both Donald and
Cedric were present when the warrant was executed. Agents found
the residence littered with drug paraphernalia. They also seized
firearms and ammunition.
7
Crystal Powell, Bunnells’s niece, spent significant time
with Donald and Cedric Taylor, staying overnight at their
trailer on many occasions, sharing meals with them, and doing
drugs with them. Of relevance to the witness tampering charges
against the Appellants, her testimony focused on one particular
night when she accompanied Cedric Taylor to meet a drug dealer
named Bobby Faircloth. She testified that during the meeting,
Faircloth repeatedly winked at Cedric Taylor and stated that the
trailer park was “hotter than a firecracker,” but that “as long
as you’re selling to the police, they can’t fuck with you.” J.A.
309. 3
3
Powell testified as follows:
We pulled up there and Buddy Faircloth was
sitting there in a van and looked at Cedric and he
winked his eye and he said three times in a row, he
said Velton’s Trailer Park is hotter than a
firecracker, he said, then he goes, but as long as
you’re selling to the police they can’t fuck with you,
and he winked his eye, and he said it three times in a
row, as long as you’re selling with the police they
can’t fuck with you and winked his eye. He done that
three times.
And then we left and got back to the trailer and
I think they started putting two and two equals four,
you know what I’m saying? [Donald Taylor] started
showing me some text messages from my uncle and I
think he realized what my uncle was doing.
And I’m not going to sit here and say, it looked
like I was doing it with my uncle because there was
times – there was money being borrowed and the whole
while my uncle was not allowed out of his yard at
eight o’clock, and even I didn’t even know that, but I
was being the middle person. They were coming back to
8
After speaking with Faircloth, Cedric Taylor returned with
Powell to the Taylors’s trailer. Soon after their arrival,
Donald Taylor showed Powell text messages from Bunnells —
messages that caused her to believe that he knew that Bunnells
was working with investigators. One text message concerned
Bunnells asking Donald Taylor to do another drug sale.
At approximately the same time that the Taylors showed
Powell the text messages, the Taylor brothers, their cousin “Big
G,” and a man named Harold Clark, each of whom was also at the
trailer, were saying things like, “all you have to do is pull
the trigger, pull the trigger.” J.A. 310. Powell also testified
that Donald Taylor indicated that he was willing to do “whatever
it took” to avoid jail, and that Harold Clark was walking around
the trailer with a gun, plastic handcuffs, and duct tape.
In due course, Donald Taylor instructed one of the men
present to take Crystal Powell from the trailer, noting that he
did not care what the man did with Powell, and requiring only
that he be informed of where he took her. The man dropped Powell
off near a friend’s residence, at her direction, and she called
Bunnells immediately and told him that his cooperation had been
exposed.
me, I was going to meet, and then bringing the money
back to them.
J.A. 309 (brackets added).
9
Bunnells testified that on the very next day, January 20,
2007, after a chance encounter near a car wash, Cedric Taylor
and another man engaged in a vehicle chase with Bunnells, firing
shots at Bunnells’s truck. Bunnells escaped by driving his truck
into a field, abandoning his vehicle, and fleeing into a wooded
area. Thereafter, Bunnells contacted the case agent and told him
about the incident, but did not identify Cedric Taylor as the
shooter until, a day or so later, he had sent his mother and
father out of town.
Bunnells took Powell to meet with investigators two days
later, and Powell advised them of what had transpired on the
night that she went with Cedric Taylor to visit Bobby Faircloth. 4
C.
The claim of trial error raised by Cedric Taylor relates to
evidence elicited from Agent Gary Owens of the Cumberland County
Bureau of Narcotics. Owens testified about Bunnells’s
cooperation and, specifically, his purchase of crack cocaine
from Donald Taylor in September and October 2006. During Owens’s
4
The defense argued at trial that Bunnells had concocted
the story of the shooting. In support of that contention, Donald
Taylor presented the testimony of Christopher Crocker, a drug
dealer who had been incarcerated with Bunnells. Crocker
testified that Bunnells told him that he had lied to the
authorities about who shot-up his truck. According to Crocker,
Bunnells stated that he had told the authorities that Donald
Taylor was responsible, but in fact, Bunnells admitted to
Crocker, he had shot-up the truck himself. On cross-examination,
the government sought to impeach Crocker through evidence of his
own aborted plea agreement and his prior silence about Bunnells.
10
testimony, the prosecutor offered into evidence the laboratory
reports generated as a result of the tests performed on those
drugs. Neither counsel objected, and the district court admitted
the reports.
III.
As mentioned, prior to trial, Donald Taylor pled guilty to
the drug conspiracy and drug distribution counts and not guilty
to the three witness tampering, retaliation, and attempted
murder counts. At trial, the jury convicted him on the charge of
witness tampering by threat of force, but it found him not
guilty on the retaliation and attempted murder counts. The jury
found Cedric Taylor guilty of drug conspiracy and witness
tampering by threat of force and not guilty on the retaliation
and attempted murder counts.
The Appellants timely filed and renewed motions for
judgments of acquittal as to the witness tampering charge. The
district court denied the motions, finding specifically that the
evidence presented at trial was sufficient to support the jury’s
verdict that the Appellants’ intent in threatening and
intimidating Powell was to intimidate and deter Bunnells from
communicating with the authorities about the Appellants’ drug
trafficking activities.
11
IV.
We first address the Appellants’ assertions of error in
connection with the denial of the motion for judgment of
acquittal as to the witness tampering charge and the admission
of the lab reports. We then address the sentencing issues they
raise.
A.
The first issue is whether the district court erred in
denying the Appellants’ motion for judgment of acquittal under
Fed. R. Crim. P. 29 as to the witness tampering charge. The
Appellants argue that the government failed to present
sufficient evidence for a jury to find beyond a reasonable doubt
that their threatening and intimidating behavior toward Powell
was intended to intimidate or threaten Bunnells and to deter him
from communicating with law enforcement. The Appellants contend
that any inference of such an intent is too attenuated and
speculative to support their convictions. They contend that the
only reasonable inference from the evidence is that they were
attempting to gain information about and/or confirmation of
Bunnells’s police connections. The government responds that
sufficient evidence supported the jury’s finding that
Appellants’ threatening and intimidating actions directly toward
Powell was intended to deter Bunnells and to cease his
cooperation and communication with investigators.
12
We review this claim de novo. See United States v. Ryan-
Webster, 353 F.3d 353, 359 (4th Cir. 2003). We must sustain a
guilty verdict that, viewing the evidence in the light most
favorable to the prosecution, is supported by “substantial
evidence.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc) (quoting Glasser v. United States, 315 U.S. 60,
80 (1942)). “Substantial evidence” is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant's guilt beyond
a reasonable doubt.” Id. To that end, we “must consider
circumstantial as well as direct evidence, and allow the
government the benefit of all reasonable inferences from the
facts proven to those sought to be established.” United States
v. Cameron, 573 F.3d 179, 183 (4th Cir. 2009) (citation
omitted).
The statute under which the Appellants were convicted
prohibits, in relevant part, “us[ing or attempting to use]
physical force or the threat of physical force against any
person . . . with intent to . . . hinder, delay, or prevent the
communication by any person to a law enforcement officer . . .
of information relating to the commission or possible commission
of a Federal offense. . . .” 18 U.S.C. §
1512(a)(2)(C)(alterations and emphases added). See generally
United States v. Harris, 498 F.3d 278, 283 (4th Cir. 2007).
13
Here, the Appellants do not argue that they did not threaten the
use of physical force against Powell, the “any person” referred
to initially in the statute. Instead, they argue that the
evidence failed as a matter of law to prove that they harbored
the requisite intent, i.e., that the evidence failed to
establish that they intended to “hinder, delay, or prevent”
Bunnells, the second “any person” referred to in the statute,
from communicating with law enforcement. We reject this
contention.
Intent is most often proved through inferences from
circumstantial and indirect evidence. This court has explained
that, “as a general proposition, circumstantial evidence may be
sufficient to support a guilty verdict even though it does not
exclude every reasonable hypothesis consistent with innocence.”
United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008)
(alteration and quotation marks omitted). “Indeed, ‘[t]he
question of one’s intent is not measured by a psychic reading of
[the defendant’s] mind but by the surrounding facts and
circumstances; i.e., circumstantial evidence.’” United States v.
Bolden, 325 F.3d 471, 494 (4th Cir. 2003) (quoting United States
v. Larson, 581 F.2d 664, 667 (7th Cir. 1978)). In light of these
well established principles, the Appellants’ argument lacks
merit. The jury finding that the Appellants intended to “hinder,
delay, or prevent the communication by any person to a law
14
enforcement officer . . . of information relating to the
commission or possible commission of a Federal offense[,]” 18
U.S.C. § 1512(a)(2)(C), is properly supported by circumstantial
evidence and reasonable inferences drawn from that evidence.
Here, the Appellants learned (or strongly suspected) that
Bunnells was cooperating with investigators. The evidence showed
that up until that time, there was no indication that they had
acted in an intimidating or threatening manner toward Powell.
She was a frequent and welcome visitor, purchased and used drugs
in their presence, and often spent the night at their residence.
The sudden and immediate change in their behavior and attitude
toward Powell after the somewhat cryptic eye-winking and veiled
oral warnings by Bobby Faircloth during his meeting with Cedric
Taylor reasonably sheds light on the Appellants’ intent. During
the ensuing encounter back at the trailer, Donald Taylor stated
emphatically within Powell’s hearing that he was willing to do
“whatever it took” to avoid jail time. And, one man walked
around the trailer with a gun, handcuff ties, and duct tape, all
the while stating, “all you have to do is pull the trigger, pull
the trigger.” J.A. 310.
In sum, the circumstantial evidence reasonably supports the
inference that the Appellants’ actions and statements during the
encounter with Powell were intended to motivate Powell to advise
her uncle that his continued cooperation and communication with
15
law enforcement about the Appellants’ drug trafficking activity
would be dealt with violently. 5 Contrary to the Appellants’
contention, the inference of their intent was not speculative or
irrational. We hold therefore that the government presented
sufficient evidence to prove beyond a reasonable doubt that the
Appellants acted “with intent to . . . hinder, delay, or prevent
the communication by [Bunnells] to a law enforcement officer . .
. of information relating to the commission or possible
commission of a Federal offense.” See 18 U.S.C. § 1512(a)(2)(C).
The district court did not err in denying the motions for
judgment of acquittal.
B.
Cedric Taylor contends that the district court erred when
it admitted in evidence laboratory reports describing the
results of drug analyses without the sponsoring testimony of the
lab technician. He argues that admission of the lab reports
violated his rights under the Confrontation Clause as
interpreted by the Supreme Court in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009). The government argues
that this claim has been waived by the failure of Cedric
Taylor’s counsel to lodge a contemporaneous objection to the
admission of the reports at trial and that this court should not
5
The indictment charged the Appellants with aiding and
abetting each other in the witness tampering counts.
16
notice “plain error” in the circumstances presented. We agree
with the government.
As there was no objection to the admission of the lab
reports, we review this claim for plain error. See Fed.R.Crim.P.
52(b); United States v. Olano, 507 U.S. 725, 732-35 (1993). As
we have explained:
Under plain error review, [Appellant] must show that
(1) the district court committed an error; (2) the
error was plain; and (3) the error affected his
substantial rights, i.e., that the error affected the
outcome of the district court's proceedings. United
States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993); United States v. Hughes, 401
F.3d 540, 547-48 (4th Cir. 2005). Even if [Appellant]
makes this showing, we should only notice the error if
the error “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Hughes,
401 F.3d at 555 (internal quotation marks and citation
omitted).
United States v. Perkins, 470 F.3d 150, 155 n.7 (4th Cir. 2006).
In this case, we have no hesitation in concluding that any
error in the district court’s admission of the lab reports did
not affect the outcome of the proceedings below. Cedric Taylor
has neither argued nor ever raised any issue at trial or in the
current appeal that the substances purchased by Bunnells from
Donald Taylor in September and October 2006 were anything other
than crack cocaine. Of course, Cedric Taylor was not charged
with substantive drug violations in connection with those
transactions. He was charged with knowing membership in a drug
trafficking conspiracy involving more than 50 grams of crack
17
cocaine. Consequently, Cedric Taylor’s sole claim on appeal is
that the admission of the lab reports prejudiced his right to a
fair trial by “documenting” that the weight of the crack cocaine
in those transactions totaled 168.8 grams (approximately six
ounces). See Appellants’ Br. 35 (Asserting that “admission of
the lab reports documenting 168.8 grams of cocaine base was
extremely prejudicial, as this was the only evidence of quantity
which appeared to be unquestionably reliable.”); id. at 36
(“Compared to the testimony of the assorted drug users and
dealers, the lab report must have seemed to the jurors to be
unimpeachable.”).
But this contention borders on the specious. The evidence
that the multi-year drug trafficking conspiracy charged in Count
One of the indictment involved more than a mere 50 grams of
crack cocaine was simply overwhelming. See supra note 1.
Furthermore, Bunnells fully described for the jury his purchases
of crack cocaine mentioned in the lab reports using government
funds, a total of $5,400.00 paid for approximately six and three
quarter ounces. Bunnells testified that at the second of the two
purchases, that of the “Big 8,” Cedric Taylor was present. In
short, the testimonial evidence shows conclusively that Cedric
Taylor was not prejudiced by the admission of the lab reports of
drug analyses admitted without objection during the testimony of
Agent Owens.
18
V.
The Appellants have raised three issues related to
sentencing. First, each argues that the district court committed
procedural error when it failed to explain adequately the bases
for the sentences it imposed. Second, Donald Taylor contends
that the court erred in failing to apply the acceptance of
responsibility adjustment at his sentencing. Finally, both
contend that the court erred in imposing a sentence of 240
months on the witness tampering conviction. We address these
assertions in turn.
A.
The Appellants argue that their sentences must be vacated
because the district court failed to explain, consonant with our
precedents, the bases for the sentences it imposed. The
government counters that the district court conducted an
individual assessment of Appellants’ cases and, in context,
adequately set forth its reasons for its sentences.
As we recently explained:
We have addressed claims of procedural sentencing
error in several recent cases. Relying on Supreme
Court guidance, we have held that for every sentence-
whether above, below, or within the Guidelines range-a
sentencing court must “place on the record an
‘individualized assessment’ based on the particular
facts of the case before it.” United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552
U.S. at 50, 128 S.Ct. 586). But we have also held that
in explaining a sentencing decision, a court need not
“robotically tick through § 3553(a)'s every
19
subsection,” particularly when imposing a within-
Guidelines sentence. United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). “[A] major departure
[from the Guidelines] should be supported by a more
significant justification than a minor one,” Gall, 552
U.S. at 50, 128 S.Ct. 586, but an individualized
explanation must accompany every sentence. See United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009);
Carter, 564 F.3d at 330.
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).
Importantly, “in determining whether there has been an adequate
explanation, we do not evaluate a court’s sentencing statements
in a vacuum;” rather, “[t]he context surrounding a district
court’s explanation may imbue it with enough content for us to
evaluate both whether the court considered the § 3553(a) factors
and whether it did so properly.” United States v. Montes-Pineda,
445 F.3d 375, 381 (4th Cir. 2007).
1.
As to Donald Taylor, the district court fully heard defense
counsel’s arguments and allocution, and then it actually imposed
the exact sentence that defense counsel requested: a sentence at
the very bottom of the applicable guidelines range. Here is what
counsel stated to the court:
I’ve talked to Mr. Taylor about this, your Honor,
and I’m sure the court’s aware that when you start out
with a base offense level of 38, you’re automatically
dealing with an enormous sentence. You add some of the
offense characteristics we’re at in this case, and, of
course, it just goes up. I don’t know that really
anything else kind of matters. Any sentence that the
court would give Mr. Taylor is a phenomenal amount of
time in jail. I would submit to the court that a
20
sentence at the bottom of that range, still being a
phenomenal number, would be sufficient in this case to
address the purposes of sentencing.
J.A. 974 (emphasis added). We have reviewed the record and find
that counsel’s request was reasonable under the circumstances.
Although the district court said little to explain its own
reasons for agreeing with counsel’s assessment, under the
circumstances, that is, “in context,” not much needed saying.
Lynn, 592 F.3d at 580 (“[Appellant’s] attorney's arguments
before the district court urged that court only to impose a
sentence within the Guidelines range, which it did. Accordingly,
we must affirm.”). We discern no procedural error in the
sentencing of Donald Taylor.
2.
We reach a contrary conclusion with regard to the
sentencing of Cedric Taylor. During Cedric Taylor’s sentencing
hearing, the district court listened to defense counsel’s
arguments regarding Cedric Taylor’s age, education, lack of
criminal convictions, and his relationship with his co-defendant
brother. Defense counsel also argued that the evidence against,
and the apparent involvement of, Cedric Taylor, was slight in
comparison to that of his brother. Counsel urged the district
court to impose a ten year sentence, stating:
I would submit, your honor, that an appropriate
sentence as to Cedric Taylor would be the mandatory
minimum of 120 months; that the sentencing guidelines
21
is advisory, and you're not required to give him a
guideline sentence if the court is so inclined; that
based on the circumstances of his life, the facts that
were going on with his brother and his involvement in
these offenses that he's been accountable for, that
the mandatory minimum is the appropriate sentence and
ask that you give him 120 months.
J.A. 956-57. At the court’s invitation, the Assistant United
States Attorney responded to the above argument in this fashion:
[We] request, your Honor, a sentence within that
guideline range as found applicable by the court. Of
course, to vary downward the court must be able to
articulate reasons for such a variance. In this case,
the circumstances of the case rather than crying out
for a downward departure for this defendant I think
would do the opposite. It was a vicious case. It was a
violent case. Under the influence of his brother or
not, an appropriate sentence in this case would be
that found in that advisory guideline range.
J.A. 957. Then, again at the court’s invitation, counsel for
Cedric Taylor was given the final word, as follows:
If it was so bad, Mr. Donald Taylor was indicted
one year before his brother Cedric was. And if the
court can look at the file, only about a month before
Donald Taylor comes to trial is his brother indicted
for all of these heinous offenses that everyone had
known about. Basically the government inserted Cedric
Taylor's name into three or four counts of the
indictment. If they had all this knowledge--you've
heard the testimony of these witnesses: "I've been
debriefed half a dozen times and I never once
mentioned the name Cedric Taylor. "When was the first
time you mentioned his name? "A week before when we
were getting ready for trial." The discovery has three
places where Cedric Taylor's name is mentioned. One is
on the porch, one he gave a user amount of cocaine,
and one from Crystal Powell that says Cedric delivered
some undescript [sic] amount of cocaine. That's it.
And now he's going to get 20 years based on these
witnesses. One hundred and twenty (120) months is
sufficient in Cedric Taylor's case.
22
J.A. 958. The court then offered Cedric Taylor an opportunity
to speak and thereafter, immediately imposed a twenty year
sentence (slightly above the very bottom of the applicable
guidelines range of 235-293 months) as follows:
The court finds the basis for the findings
contained in the pre-sentence report credible and
reliable and therefore the court adopts those
findings. Based on those findings, the court has
calculated the imprisonment range prescribed by the
advisory sentencing guidelines and has considered that
range, as well as other relevant factors set forth in
the advisory guidelines, and those set forth in 18
United States Code, section 3553(a). Pursuant to the
Sentencing Reform Act of 1984, it is the judgment of
the court that Cedric Taylor is hereby committed to
the custody of the bureau of prisons to be imprisoned
for a term of 240 months on each count to be served
concurrently. Upon release from imprisonment, the
defendant shall be placed on supervised release for a
term of five years. This term consists of a term of
five years on count one and a term of three years on
count four, all such terms to run concurrently.
* * * *
Inasmuch as the range exceeds 24 months, the
court has imposed a sentence near the bottom of the
range because there are no unaccounted for aggravating
factors and because of the defendant's lack of
criminal convictions.
J.A. 959-62 (emphasis added).
As the above excerpt from the Cedric Taylor sentencing
hearing shows, while the district court commendably allowed
counsel a full opportunity to make vigorous arguments to aid the
court in determining an appropriate sentence, the court never
explicated its reasons for imposing a twenty year sentence. The
23
court’s failure is especially striking in light of the non-
spurious bases identified in detail by counsel for a variance
sentence, to which the court never adverts. Certainly, the case
involved facts that might warrant a sentence within the
applicable guidelines range. Nevertheless, we are wholly unable
to assess the reasonableness of the sentence because the
district court failed to state the reasons for the sentence it
imposed.
The government’s reliance on the portion of the court’s
statement, which we have underscored, that “the court . . .
imposed a sentence near the bottom of the range because there
are no unaccounted for aggravating factors and because of the
defendant's lack of criminal convictions,” is unavailing. In
prefacing those remarks with the statement, “[i]nasmuch as the
range exceeds 24 months,” the court makes it clear that it is
complying with the statutory requirement that it state “the
reason for imposing a sentence at a particular point within the
[guidelines] range.” 18 U.S.C. § 3553(c)(1). 6 A district court’s
6
Section 3553(c)(1) provides as follows:
(c) Statement of reasons for imposing a sentence.—The
court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence, and, if the sentence--
(1) is of the kind, and within the range, described in
subsection (a)(4) and that range exceeds 24 months,
the reason for imposing a sentence at a particular
point within the range . . . .
24
explanation of its selection of a sentence within a sentencing
guidelines range, as required by 18 U.S.C. § 3553(c)(1), may
well provide, in an appropriate case, the “‘individualized
assessment’ based on the particular facts of the case before
it,” as required by Gall, 552 U.S. at 50, and Carter, 564 F.3d
at 330. The explanation provided here, however, falls
considerably short of that standard.
Accordingly, for the reasons set forth, we vacate the
sentence imposed on Cedric Taylor and we remand for
resentencing.
B.
Donald Taylor contends that, because he entered guilty
pleas to the drug conspiracy and drug distribution counts, the
district court erred when it refused to apply the acceptance of
responsibility adjustment pursuant to U.S.S.G § 3E1.1(a). In his
brief on appeal, Donald Taylor argues, in part, that the
adjustment clearly would be warranted if this court vacates his
conviction on the witness tampering charge. As explained above,
we affirm that conviction. But he also contends that, even if
the witness tampering conviction is affirmed, a two-level
reduction in the adjusted offense level is appropriate because
he: (1) pled guilty to all drug counts brought against him; (2)
18 U.S.C. § 3553(c)(1).
25
accepted responsibility for his “drug offense-related action;”
and (3) failed to challenge the presentence investigation
report, which included evidence of drug weights, admitted due to
“hearsay statements by potentially unreliable and non-credible
co-conspirators.”
The government argues that the district court did not err
in refusing to grant defendant an acceptance of responsibility
adjustment, in part because the drug counts and the witness
tampering counts were grouped in Donald Taylor’s guidelines
calculation. We agree. The grouping of the drug counts of the
indictment with the witness tampering count in the guidelines
computation dictates that, though Donald Taylor pled guilty to
the former counts, his conviction on the latter count precludes
application of U.S.S.G. §3E1.1. United States v. Hargrove, 478
F.3d 195, 200 (4th Cir. 2007) (“[U]nder the terms of U.S.S.G. §
3E1.1, the defendant must . . . accept responsibility for the
grouped guidelines counts in order to be eligible for the
reduction in offense level for that particular
offense.”)(internal quotations omitted); United States v.
Garrido, --- F.3d ---, 2010 WL 653439 at *5 (9th Cir. Feb. 25,
2010) (“We join our sister circuits in holding that, where a
defendant accepts responsibility for all counts that are grouped
under U.S.S.G. §§ 3D1.1-3D1.5, that defendant is eligible for
the § 3E1.1 reduction for those counts, even if the defendant
26
has not accepted responsibility for other counts which, under §
3D1.1(b), are excluded from grouping.”)(citing Hargrove). Thus,
the district court did not err in declining to apply the
acceptance of responsibility adjustment in calculating Donald
Taylor’s guidelines.
C.
Finally, the Appellants contend that the district court
committed plain error when it imposed twenty year sentences on
the witness tampering convictions under 18 U.S.C. §
1512(a)(2)(c). Although neither defense counsel objected at
sentencing, the government agrees that at the time the
Appellants committed that offense in January 2007, the statutory
maximum penalty was ten years. (Congress amended the statute in
2008 to increase the penalty to a maximum of twenty years.) It
is clear in the record that the district court’s imposition of a
twenty year sentence was inadvertent. Cf. Weaver v. Graham, 450
U.S. 24, 28 (1981) (discussing ex post facto clause); Lynce v.
Mathis, 519 U.S. 433, 441 (1997) (same). Although there was
extensive discussion (and agreement) among the parties and the
magistrate judge who arraigned the Appellants that the maximum
potential sentence was ten years on the witness tampering charge
under § 1512(a)(2)(c), the pre-sentence investigation report
failed to flag the change for the district judge.
27
In any event, we agree with the government that, under the
circumstances, the error is amenable to correction as to Donald
Taylor by a simple revision to and reissuance of the judgment
and commitment order because the district court clearly intended
to impose the applicable statutory maximum sentence and to run
that sentence concurrently with the sentences on the drug
counts. Of course, as to Cedric Taylor, we have ordered a new
sentencing hearing. The district court shall correct its error
as to the sentence under § 1512(a)(2)(c) in connection with the
resentencing.
VI.
In conclusion, in appeal no. 08-5039, we affirm the
convictions and vacate the sentence imposed on Cedric Taylor and
remand with directions that a new sentencing hearing be held in
accordance with the views stated herein. In appeal no. 08-5028,
we affirm the convictions and modify the sentence imposed on
Donald Taylor as to indictment count four and remand with
directions that a revised judgment and commitment order be
entered in accordance with the views stated herein. In all other
respects, the judgments are affirmed.
AFFIRMED IN PART, VACATED IN PART,
MODIFIED IN PART, AND REMANDED
28