[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-12072 ELEVENTH CIRCUIT
JUNE 17, 2005
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00458-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OTTO TAYLOR,
a.k.a. Cole,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 17, 2005)
Before BLACK and HULL, Circuit Judges, and HODGES*, District Judge.
PER CURIAM:
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
Otto Taylor appeals his life sentence for conspiracy to possess with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,
841(b)(1)(A)(ii) and (iii). Taylor’s main arguments on appeal are that the district
court: (1) abused its discretion by denying his motion to withdraw his guilty plea;
and (2) violated Blakely v. Washington, 124 S. Ct. 2351 (2004), and United States
v. Booker, 125 S. Ct. 738 (2005), by applying upward adjustments for relevant
conduct, and enhancements for possession of a gun and aggravating role. The
district court did not abuse its discretion in denying Taylor’s motion to withdraw
his guilty plea, but plainly erred under Booker. We vacate and remand for
resentencing.
I. DISCUSSION
A. Motion to withdraw guilty plea
Taylor contends the district court should have granted his motion to
withdraw his guilty plea because he did not understand the consequence of his
guilty plea could be life imprisonment. He contends his attorney did not receive
the information upon which the probation officer based the recommendation that
Taylor receive a life sentence. After an evidentiary hearing on Taylor’s motion to
withdraw his guilty plea, the district court concluded the Government had not
misled Taylor regarding the available evidence against him. Alternatively, the
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court stated even if Taylor had been unaware of the Government’s evidence at the
time of entering his plea, he was nevertheless aware of the nature of the charge
and the fact there was evidence supporting the charge. The district court further
noted Taylor acknowledged at the Rule 11 hearing the possibility he might receive
a life sentence. On these grounds, the district court denied the motion.
We review a district court’s denial of a defendant’s motion to withdraw his
guilty plea for abuse of discretion. United States v. McCarty, 99 F.3d 383, 385
(11th Cir. 1996). A defendant may withdraw his guilty plea after the district court
accepts the plea and before sentencing if “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In
determining whether the defendant has met his burden, a district court may
consider the totality of circumstances surrounding the plea, including “(1) whether
close assistance of counsel was available; (2) whether the plea was knowing and
voluntary; (3) whether judicial resources would be conserved; and (4) whether the
government would be prejudiced if the defendant were allowed to withdraw [his]
plea.” United States v. Buckles, 843 F.2d 469, 471–72 (11th Cir. 1988) (internal
citations omitted).
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The district court did not abuse its discretion by denying Taylor’s motion to
withdraw his guilty plea. At the Rule 11 hearing, the district court clearly advised
Taylor he faced a maximum sentence of life imprisonment, and Taylor purported
to understand that possibility. Taylor further represented his understanding that
his actual sentence could not be predicted, even by his counsel, and that, once
entered, his guilty plea could not be withdrawn. Taylor affirmed his plea was not
the result of promises or threats, and that it was made freely and voluntarily.
Indeed, Taylor does not allege the Rule 11 hearing was improper in any way.
Taylor was represented by counsel, who also stated during the hearing he
understood the minimum and maximum sentences for Taylor’s offense to be “ten
and life,” respectively, and Taylor affirmed his attorney had advised him of the
Sentencing Guidelines. The record demonstrates Taylor’s plea was knowing and
voluntary. On these bases, we hold the district court did not abuse its discretion in
denying Taylor’s motion to withdraw his guilty plea.
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B. Blakely/Booker
We review Taylor’s Booker argument for plain error because he raised this
argument for the first time in his initial brief on appeal.1 See United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
An appellate court may not correct an error the defendant failed to
raise in the district court 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.
Id. (internal quotations and citation omitted).
In this case, there is Booker constitutional error that is plain because the
sentencing court enhanced Taylor’s sentence, under a mandatory Guidelines
system, based on facts that were neither admitted by Taylor nor found by a jury.
See id. at 1298–99. Under the third prong of plain error review, “we ask whether
there is a reasonable probability of a different result if the [G]uidelines had been
applied in an advisory instead of binding fashion by the sentencing judge in this
1
Although Taylor claims his case should be subject to preserved error review because he
moved to withdraw his plea and proceed to trial before jury, his motion to withdraw was based
on his professed misunderstanding of his possible sentence, not because there were
enhancements imposed under a mandatory Guidelines system that were neither found by a jury
nor admitted by him. To preserve a Booker issue in the district court, the defendant must refer to
the Sixth Amendment, Apprendi, Blakely, Booker, the right to have the jury decide the disputed
fact, raise a challenge to the role of the judge as factfinder with regard to sentencing, or raise
another similar objection. United States v. Dowling, 403 F.3d 1242, 1246 (11th Cir. 2005).
Taylor did not object on any of these or similar grounds, so we review his claim for plain error.
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case.” Id. at 1301. It is the defendant’s burden to show he meets this test. Id. at
1299.
Taylor has met the burden of showing there is a reasonable probability of a
different result if the Guidelines had been applied in an advisory fashion. For
example, the district judge stated: “I dislike [the Guidelines] . . . but I refuse to
manipulate them to get to the end result.” The district judge repeatedly said he
would not manipulate the Guidelines, and further stated “I don’t always like the
result that comes up from [the Guidelines].” Reading all the comments together
establishes a reasonable probability the district court would have imposed a more
lenient sentence had it considered the Guidelines to be advisory. See United
States v. Martinez, 407 F.3d 1170, 1174 (11th Cir. 2005).
Taylor also meets the fourth prong of plain-error review. “Because the
district court expressed a clear desire to impose a more lenient sentence and
Booker provides that the district court had the authority to consider the Guidelines
as advisory, the plain error of applying the Guidelines in a mandatory fashion
seriously affected the fairness, integrity or public reputation of [Taylor’s]
sentencing.” See id.
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II. CONCLUSION
The district court did not abuse its discretion in denying Taylor’s motion to
withdraw his guilty plea. The district court plainly erred, however, under Booker.2
Thus, we vacate and remand for resentencing in light of Booker. We note the
district court correctly calculated Taylor’s Guidelines range. 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 Taylor according to Booker, considering the Guidelines advisory range of
2
Taylor also argues the district court erroneously: (1) increased his criminal history score
based upon a prior conviction in violation of his Sixth Amendment rights, and (2) used the
preponderance of the evidence standard to increase his sentence to mandatory life imprisonment.
First, a district court does not commit Booker constitutional error by relying on past convictions
to enhance a defendant’s sentence. United States v. Shelton, 400 F.3d 1325, 1329 (11th Cir.
2005). Although this claim constitutes Booker statutory error because the district court plainly
erred in treating the Guidelines as mandatory, this error can be corrected on remand. See id. at
1329–30. Second, as to Taylor’s second argument, he acknowledges acceptance of his view
would require overruling this Court’s precedent. See, e.g., United States v. Florence, 333 F.3d
1290, 1294 (11th Cir. 2003). On remand, the district court should once again use the
preponderance of the evidence standard in sentencing, but should treat the Guidelines as
advisory. See Booker, 125 S. Ct. at 757.
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life and “other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp.
2004).” Booker, 125 S. Ct. at 757.3
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
3
We do not mean to imply that on remand the district court must impose a lesser
sentence. Rather, we merely hold Taylor met his burden of showing Booker constitutional plain
error. We also will not attempt to decide now whether a particular sentence below the
Guidelines range might be reasonable in this case.
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