[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-14178 JUNE 14, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 04-00003-CR-4-RH-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE PERNELL MCKINNEY,
a.k.a. Maurise McKinney
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(June 14, 2005)
Before ANDERSON, HULL and FAY, Circuit Judges.
PER CURIAM:
Maurice Pernell McKinney appeals his convictions and his 300-month
sentence for possession with intent to distribute cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (“Count 2”); possession of firearms in furtherance of
a drug-trafficking offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i),
(c)(1)(B)(i), and 2 (“Count 3”); and possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (“Count 5”).
McKinney argues on appeal that (1) his trial counsel provided ineffective
assistance, (2) the district court abused its discretion in denying his motion to
withdraw his guilty plea to the § 924(c) offense in Count 3, (3) the court erred in
imposing a mandatory minimum ten-year consecutive sentence based on its
judicial finding that McKinney possessed an Intratec 9 millimeter semi-automatic
pistol, and (4) the court violated McKinney’s Sixth Amendment right to a jury trial
in considering the federal guidelines in sentencing him, in light of Blakely v.
Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United
States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the
reasons set forth more fully below, we affirm McKinney’s convictions and
sentence.
A federal grand jury returned a superseding indictment, charging McKinney
with the above-referenced offenses and listing the firearms McKinney allegedly
2
possessed in furtherance of a conspiracy to distribute cocaine base in Count 3 of
this indictment, that is, a Rossi .38 Special revolver (“revolver”), and an Intratec 9
millimeter semi-automatic pistol (“assault weapon”).1 On April 26, 2004,
McKinney pled guilty to Count 5 of his superseding indictment, without the
benefit of a plea agreement. During McKinney’s change-of-plea hearing, he
conceded that he had both knowledge of, and access to, the revolver, the assault
weapon, and the ammunition. McKinney also advised the court that, although he
wished to have a trial on the remaining counts, he was waiving his right to a trial
by jury because these offenses involved primarily legal issues.
On May 6, 2004, the day McKinney’s bench trial was scheduled to
commence on his remaining charges, he plead guilty to Counts 2 and 3, with the
unwritten understanding that the government was agreeing to dismiss Count 1 of
his superseding indictment. After confirming that McKinney was competent to
plead guilty and understood the rights he was waiving by pleading guilty, the court
explained the remaining charges to McKinney. As part of this discussion,
McKinney’s counsel informed the court that (1) whether McKinney received a
mandatory minimum consecutive sentence of five or ten years’ imprisonment for
1
Codefendant Rollins was charged in this same superseding indictment with
conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846 (“Count 1"); a § 924(c) offense (“Count 3"); and a § 922(g)(1)
offense (“Count 4").
3
his § 924(c) offense in Count 3 depended on whether the firearm he possessed was
the revolver or the assault weapon,2 (2) the parties had agreed that the court would
decide this issue at sentencing, and (3) McKinney wished to have his plea
accepted. McKinney’s counsel noted, however, that he was not certain whether
“possession” could be a sentencing factor. After discussing the possible
implications of Apprendi, the court and the parties concluded that McKinney’s
admission to possessing the revolver and his leaving for the court’s determination
the issue whether he also possessed the assault weapon would not result in a
constitutional violation.
The government then proffered that, had the case proceeded to trial, it
would have proven that (1) officers with the Leon County Sheriff’s Office were
attempting to locate Rollins, who was a fugitive; (2) as part of this investigation, a
confidential information (“CI”) arranged a meeting with Rollins at a McDonald’s
restaurant, at which time the CI was to buy cocaine base from Rollins; (3) when
the officers arrived at the McDonald’s parking lot, they observed a vehicle in
2
“[A]ny person who, during an in relation to any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possess a firearm,
shall, in addition to the punishment provided for such crime of violence or drug trafficking
crime—(i) be sentenced to a term of imprisonment of not less than 5 years.” See 18 U.S.C.
§ 924(c)(1)(A)(i). However, “[i]f the firearm possessed by a person convicted of a violation of
this subsection—(i) is a short-barreled rifle, short-barreled shot-gun, the person shall be
sentenced to a term of imprisonment of not less than 10 years.” See 18 U.S.C. § 924(c)(1)(B)(i).
4
which Rollins was in the passenger seat and McKinney was in the driver seat;
(4) when Rollins went inside the restaurant, the officers arrested him;
(5) the officers then went to the vehicle in which McKinney was sitting and
arrested him; (6) during a search of this vehicle, the officers recovered both the
assault weapon and the resolver from in between the front driver and passenger
seats; (7) the officers also recovered rounds of .38 ammunition from McKinney’s
pocket, proof that the vehicle was owned by McKinney, and cocaine base from
Rollins’s pocket; and (8) McKinney stated that he and Rollins had (i) driven
around in the vehicle that day, (ii) sold cocaine base to someone, and (iii) driven to
the McDonald’s restaurant to sell more cocaine base to the CI.
McKinney generally verified that these facts were correct, stating that,
although he did not own either of the firearms, he had on his person ammunition
for the pistol, he knew that Rollins had both of the firearms, and the firearms were
in McKinney’s vehicle while he and Rollins conducted drug transactions. The
court then informed McKinney of the potential consequences of his plea,
including that he would be subject to a consecutive mandatory minimum sentence
of either five or ten years’ imprisonment, dependent on whether the court
determined that he possessed only the revolver or both the revolver and the assault
weapon. McKinney also agreed that (1) no one had promised him anything in
5
exchange for his plea, (2) no one had coerced him into pleading guilty, (3) he
understood that he would not be permitted to withdraw his plea, and (3) he was
satisfied with his counsel’s representation. The court accepted McKinney’s plea,
finding that McKinney was competent to plead guilty, he understood the nature of
his charges and the consequences of his plea, a sufficient factual basis supported
the plea, and McKinney entered into the plea freely and voluntarily, after
consulting with competent counsel.
McKinney’s presentence investigation report (“PSI”) calculated his base
offense level for Counts 2 and 5 as 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A).3
The probation officer recommended a two-level upward adjustment, pursuant to
U.S.S.G. § 2K2.1(b)(4), because the assault weapon previously had been reported
stolen by the owner, and a two-level downward adjustment, pursuant to U.S.S.G.
§ 3E1.1(a), for acceptance of responsibility. Based on the officer’s determination
that McKinney was subject to an enhanced sentence under 18 U.S.C. § 924(e)
(armed career criminal), and that McKinney possessed a firearm in connection
3
The PSI reflects that Count 2 (U.S.S.G. § 2D1.1) and Count 5 (U.S.S.G. § 2K2.1) were
grouped together, pursuant to U.S.S.G. § 3D1.2(c). Because the use of § 2K2.1 resulted in the
highest offense level, it was used as the offense level for the grouped offenses, pursuant to
U.S.S.G. § 3D1.3(a). In addition, because McKinney had to serve a mandatory minimum
statutory sentence of ten years’ imprisonment for his § 924(c) offense in Count 3 of his
superseding indictment, this statutory sentence was his guideline sentence for Count 3, pursuant
to U.S.S.G. § 2K2.4(b), and Count 3 was exempted from the grouping, pursuant to U.S.S.G. §
3D1.1(b).
6
with a controlled-substance offense, he applied an enhanced offense level of 34,
pursuant to U.S.S.G. § 4B1.4(a) and (b)(3)(A). After the officer adjusted this
enhanced offense level downwards two levels for acceptance of responsibility,
pursuant to § 3E1.1(a), McKinney had a total offense level of 32 for Counts 2 and
5. With a criminal history category of VI, McKinney’s resulting guideline range
for these counts was 210 to 262 months’ imprisonment. McKinney, however,
also was subject to a consecutive mandatory minimum statutory sentence of either
five or ten years’ imprisonment for his § 924(c) offense in Count 3.
McKinney objected to the probation officer’s consideration of the assault
weapon in calculating his guideline range and to his mandatory minimum statutory
sentence, arguing that Rollins, instead, owned and possessed this firearm.
McKinney also generally raised an objection to the court’s determination of this
issue in light of Blakely. The probation officer responded that, because McKinney
aided and abetted Rollins in Rollins’s use of the assault weapon, he should be held
accountable for this conduct. The probation officer noted, as well, that, because
McKinney was a career offender, this objection had no real impact on his
guideline sentence.4
4
The probation officer appears to have mis-spoken here because McKinney was not
deemed a career offender who was sentenced under U.S.S.G. § 4B1.1, but rather was sentenced
as an armed career criminal under U.S.S.G. § 4B1.4. Under either enhancement, however, the
calculations under Chapter 2 would be rendered irrelevant.
7
On July 26, 2004, prior to sentencing, McKinney filed a motion to withdraw
his guilty plea to Count 3, arguing that he plead guilty to Count 3 based on his trial
counsel’s misadvice that the issue whether he possessed the assault weapon was a
sentencing factor, instead of an element of the offense that the government had to
prove beyond a reasonable doubt. McKinney also argued in a written motion that
the court should conclude that the federal guidelines were unconstitutional in light
of Blakely. In doing so, McKinney also requested that the court determine a
sentence that “adequately consider[ed] the circumstances of the offense and [his]
personal circumstances,” instead of “merely complying with the mechanical
calculations of the [g]uidelines.”
On July 30, 2004, at a joint sentencing hearing for McKinney and Rollins,
McKinney renewed his motion to withdraw his plea as to Count 3 of the
superseding indictment. McKinney’s counsel explained that, in advising
McKinney that his possession of the assault weapon in Count 3 was a sentencing
factor, counsel “had it wrong.” After the government objected to this motion, the
court denied it. The court discussed that (1) the Supreme Court’s decision in
Blakely did not effect whether a defendant could waive his right to a jury trial,
(2) McKinney effectively waived this right, and (3) both his waiver of his right to
a trial and his plea were knowing, voluntary, and intelligent.
8
The court next confirmed that McKinney’s only objections to the PSI were
his Blakely objection and his argument that the court should not determine that he
possessed the assault weapon. The court also clarified that the assault-weapon
issue would not affect the guideline calculation; rather, it would affect the
mandatory minimum sentence for Count 3. In addition to the court considering as
relevant evidence McKinney’s admissions during his two change-of-plea hearings,
the government stipulated that Rollins brought the assault weapon to McKinney’s
car on the day in question.
McKinney then argued that, because the record reflected that his connection
with the assault weapon was “remote,” the government did not show that he
possessed the assault weapon in furtherance of the drug offense. Citing to
Bazemore v. United States, 138 F.3d 947 (11th Cir. 1998), the government
responded that, by driving Rollins around to commit drug transactions and
allowing the firearms to be in his vehicle, McKinney aided and abetted Rollins’s
acts and, thus, should be held accountable for both of the firearms they possessed
in furtherance of these acts. McKinney replied that the facts in Bazemore were
distinguishable because the defendant in that case had a greater involvement in the
drug transactions and, thus, benefitted more from the presence of the firearms.
9
The court concluded that McKinney, as an aider or abettor, possessed the
assault weapon in furtherance of the drug-trafficking offense. The court also
clarified that McKinney’s guideline range for Counts 2 and 5 was 210 to 262
months’ imprisonment,5 and that his total mandatory minimum sentence was 300
months’ imprisonment.
McKinney next argued that the court should determine that the federal
guidelines were unconstitutional and only impose his total mandatory minimum
statutory sentence. In the alternative, he argued that the court should impose a
sentence at the bottom of his total guideline range, that is 330 months’
imprisonment,6 because (1) he was “remotely connected to [the offenses];” (2) he
had not committed another offense for 11 years, albeit because he had been
incarcerated; and (3) he offered to cooperate with the government.
Explaining in detail why it believed that the Supreme Court’s decision in
Blakely was applicable to the federal guidelines, the court determined, over the
government’s objection, that the guidelines were unconstitutional, but that courts
still should consider them in an advisory fashion in sentencing defendants. The
5
Although the transcript states that the sentencing range was 201 to 262 months’
imprisonment, this statement appears to be a clerical error.
6
This total guideline range results from combining McKinney’s guideline range of 210
to 262 months’ imprisonment in Counts 2 and 5, with his consecutive statutory sentence of 10
years’ (120 months’) imprisonment in Count 3.
10
court also explained that, although it had considered McKinney’s guideline range,
it had concluded that McKinney’s total mandatory minimum statutory sentence of
25 years’ imprisonment was appropriate. In doing so, the court expressly stated
that it had considered McKinney’s attempts to cooperate, the fact that the instant
conduct involved “a fairly limited drug offense,” and that Rollins’s guideline
range was significantly less primarily because he plead guilty several days before
McKinney’s plea. After concluding that the PSI was accurate, the court sentenced
McKinney to a total sentence of 300 months’ imprisonment (25 years’
imprisonment), 5 years’ supervised release, and a $300 special assessment fee.
Issue 1: Claim of ineffective assistance
As a preliminary issue, McKinney argues that the record shows that his trial
counsel’s performance was deficient because his counsel, in arguing that the
district court should allow McKinney to withdraw his guilty plea, admitted that he
misadvised McKinney on the elements of his § 924(c) offense. To successfully
establish a claim of ineffective assistance of counsel, a plaintiff must prove that
(1) his counsel’s performance was deficient, falling below an objective standard of
reasonableness; and (2) this deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80
L.Ed.2d 674 (1984).
11
We, however, generally will not consider on direct appeal claims of
ineffective assistance of counsel if the district court neither entertained this claim,
nor developed a factual record. United States v. Bender, 290 F.3d 1279, 1284
(11th Cir. 2002) (citing United States v. Khoury, 901 F.2d 948, 969 (11th Cir.
1990)). We have explained that, if there is insufficient evidence in the record to
consider this claim on direct appeal, it should be resolved in a 28 U.S.C. § 2255
proceeding, where an evidentiary hearing may be held. United States v. Camacho,
40 F.3d 349, 355 (11th Cir. 1994).
Here, in moving the court to withdraw McKinney’s guilty plea, McKinney’s
counsel stated, in a conclusory fashion, that he “got it wrong” in advising
McKinney that McKinney’s possession of the assault weapon was a sentencing
factor, instead of an element of his § 924(c) offense. The record, however, is not
sufficiently developed to determine either whether McKinney’s counsel’s
performance was deficient, or whether McKinney was prejudiced by this
performance. Thus, we will not review on direct appeal McKinney’s claim of
ineffective assistance of counsel. See Bender, 290 F.3d at 1284.
12
Issue 2: Denial of McKinney’s motion to withdraw his guilty plea to
possession of firearms in furtherance of a drug-trafficking offense
McKinney also argues that the court erred in denying his motion to
withdraw his plea of guilty to his § 924(c) offense in Count 3 of his superseding
indictment because, as discussed above, his counsel admitted on the record that he
believed that he misadvised McKinney that possession of the assault weapon was
a sentencing factor, instead of an element of the crime to be determined by a jury
beyond a reasonable doubt. McKinney also contends that, because of this
misadvice, he neither understood the nature of this charge, nor the potential
consequences of his plea. McKinney asserts that the court did not conserve
judicial resources by denying this motion because a trial would have been short,
consisted primarily of stipulations, and involved only one witness. Finally,
McKinney argues that the government would not have been prejudiced by the
court’s granting of this motion because (1) the amount of evidence was not
substantial, and (2) he filed the motion shortly after pleading guilty.
We review the denial of a motion to withdraw a guilty plea for an abuse of
discretion; thus, it only will reverse a court’s denial of a motion to withdraw if it is
“arbitrary and unreasonable.” United States v. Cesal, 391 F.3d 1172, 1179 (11th
Cir. 2004) (quotation omitted). A defendant may withdraw a guilty plea before a
13
sentence is imposed if he shows a “fair and just reason” for the withdrawal. Id.
(quoting Fed.R.Crim.P. 11(d)(2)(B)). “To determine whether the defendant has
given a fair and just reason for withdrawal, the district court examines the totality
of the circumstances, 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.’” Cesal, 391 F.3d
at 1179 (quotation omitted).
To the extent McKinney is arguing that the court should have permitted him
to withdraw his plea to the § 924(c) offense in Count 3 because his counsel
misadvised him that the type of firearm he possessed was a sentencing factor,
instead of an element of the offense for the jury to determine beyond a reasonable
doubt, this argument is without merit. The Supreme Court clarified in Harris v.
United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), that
§ 924(c)(1)(A) does not specify elements of a crime that must be charged in an
indictment, submitted to the jury, or proved beyond a reasonable doubt. Id., 536
U.S. at 552-56, 122 S.Ct. at 2411-14. The Harris Court explained that an increase
in the defendant’s statutory mandatory minimum sentence based on a judicial
finding that the defendant “brandished” the firearm, pursuant to § 924(c)(1)(A)(ii),
14
“[did] not evade the requirements of the Fifth and Sixth Amendments. Congress
‘simply took one factor that has always been considered by sentencing courts to
bear on punishment . . . .and dictated the precise weight to be given that factor.”
Id. at 568, 122 S.Ct. at 2420. The Harris Court also discussed that, when § 924(c)
was amended in 1998, numbered subsections were added, “describing, as
sentencing factors often do, “special features of the manner in which” the statute’s
“basic crime” could be carried out,” and only altering the mandatory minimum
sentences for the court to impose. Id. at 554, 122 S.Ct. at 2412-13.
Instead of whether the defendant “brandished” the firearm under
§ 924(c)(1)(A)(ii), the subsection at issue here—§ 924(c)(1)(B)(i)—involves the
type of firearm possessed. (See R1-18). In Castillo v. United States, 530 U.S.
120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), the Supreme Court, in examining a
prior version of § 924(c)(1), determined that its provisions on types of firearms
defined separate crimes that had to be proven to a jury beyond a reasonable doubt.
See id., 530 U.S. at 123-24, 120 S.Ct. at 2092-93. However, in reaching this
determination, the Castillo Court relied heavily on the structure of the former
§ 924(c)(1), that is, that “Congress placed the element of ‘uses or carries a firearm’
and the word ‘machinegun’ in a single sentence, not broken up with dashes or
15
separated into subsections.” See United States v. Riley, 250 F.3d 1303, 1305
(11th Cir. 2001) (quoting Castillo, 530 U.S. at 124-25, 120 S.Ct. at 2093).
Because the current version of § 924(c)(1)(B)—the version applicable in
the instant case—dictates in separate subsections applicable mandatory statutory
sentences that result dependent on the type of firearm involved in the offense, we
conclude, based on the Supreme Court’s similar analysis in Harris, that this
subsection only involves a sentencing factor. See 18 U.S.C. § 924(c)(1)(B)
(2004); see also Harris, 536 U.S. at 554, 122 S.Ct. at 2412-13.7 Moreover, we
have determined that the Supreme Court’s analysis of § 924(c)(1) applies not only
to direct conduct of defendants, but also to conduct that they aid or abet. United
States v. Williams, 334 F.3d 1228, 1232-33 (11th Cir. 2003). Thus, McKinney’s
counsel did not misadvise him that the type of weapon he possessed in Count 3 of
his superseding indictment, albeit through a theory of aiding and abetting, was a
sentencing factor for the court to determine.
7
Although we have not directly addressed whether the type of firearm involved under
the current version of § 924(c)(1)(B)(i) is a sentencing issue or an element of the offense, other
circuits that have addressed this issue have determined that it involves a sentencing issue. See
United States v. Harrison, 272 F.3d 220, 225 (4th Cir. 2001) (sentencing factor); United States v.
Sandoval, 241 F.3d 549, 551-52 & n.1 (7th Cir. 2001) (same); United States v. Cavely, 318 F.3d
987, 1000 (10th Cir. 2003) (same); But see United States v. Bundy, 239 F.3d 802, 807 (6th Cir.
2001) (applying Castillo to revised § 924(c)(1)(B), and concluding that the type of weapon used
is an element of the offense).
16
Examining the other factors applicable in determine whether McKinney
showed a “fair and just reason” for his motion to withdraw his plea to Count 3, the
government arguably would not have been prejudiced substantially if the court had
granted McKinney’s motion to withdraw because only a little more than two
months elapsed between his pleading guilty to Count 3 on May 6, 2004, and his
filing his motion to withdraw this plea on July 26, 2004. On the other hand,
regardless of the limited number of witnesses involved and estimated length of the
trial, the court’s denial of McKinney’s motion to withdraw conserved judicial
resources. See United States v. Freixas, 332 F.3d 1314, 1319 (11th Cir. 2003)
(concluding that the court’s decision denying the defendant’s motion to withdraw
“plainly served the goal of conserving judicial resources, as it obviated the need
for a full trial on the merits in this case”).
Moreover, McKinney failed to show that his plea was not knowing and
voluntary. “When a district court accepts a guilty plea, it must ensure that the
three core concerns of [Fed.R.Crim.P. 11] have been met: (1) the guilty plea must
be free from coercion; (2) the defendant must understand the nature of the charges;
and (3) the defendant must know and understand the consequences of his guilty
17
plea.” See Freixas, 332 F.3d at 1318 (internal quotation and marks omitted).8
Here, similar to the facts in Freixas, the court, before accepting McKinney’s plea,
confirmed that McKinney was competent to plead guilty and understood the rights
he was waiving by pleading guilty. The court also verified that McKinney
(1) understood his remaining charges; (2) knew of the potential consequences of
his plea, including that he would be subject to a consecutive mandatory minimum
sentence of either five or ten years’ imprisonment, dependent on whether the court
determined that he possessed the assault weapon; and (3) had not been threatened
or coerced into pleading guilty. In addition, the court verified that McKinney’s
plea was supported by a sufficient factual basis. See Fed.R.Crim.P. 11(b)(3)
(before accepting a guilty plea, a district court “must determine that there is a
factual basis for the plea”). Thus, the court did not abuse its discretion in denying
McKinney’s motion to withdraw his plea to Count 3 of his superseding
indictment. See Cesal, 391 F.3d at 1179.
8
We recently have reiterated that, although the voluntariness of a guilty plea is
reviewed de novo, we “will not overturn a judge’s decision to accept a guilty plea unless there
has been an abuse of discretion.” See United States v. Frye, 402 F.3d 1123, 1126-27 (11th Cir.
2005) (concluding that the record showed that the defendant understood the charges against him
and voluntarily and knowingly plead guilty when the defendant stated that he (1) was satisfied
with his counsel’s representation, (2) was not coerced into pleading guilty, and (3) understood the
charges and consequences of pleading guilty).
18
Issue 3: Mandatory minimum sentence in Count 3
McKinney next argues that the court erred in concluding that he possessed
the assault weapon when the undisputed evidence showed that he only drove
Rollins to the drug transaction, did not get out of the vehicle, and did not receive
any benefit from the drug transaction. McKinney also contends that court’s
determination that he facilitated the carrying of this firearm rested on an improper
finding of “guilt by association.” McKinney concludes, as such, that the court
erred in imposing a consecutive mandatory minimum sentence under § 924(c).
As a preliminary matter, if we construe McKinney’s argument as
challenging the fact that the court, instead of a jury, determined this issue, the
Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Id., 530 U.S. at
490, 120 S.Ct. at 2362-63. Before McKinney’s sentencing hearing, the Supreme
Court revisited that rule in Blakely, in the context of Washington state’s
sentencing guideline scheme, and clarified that “the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In
19
other words, the relevant ‘statutory maximum’ is not the maximum sentence a
judge may impose after finding additional facts, but the maximum he may impose
without any additional findings.” Blakely, 542 U.S. at ___, 124 S.Ct.at 2537
(emphasis in original). Applying these principles, the Court held that Blakely’s
sentence—which was enhanced under the state guidelines based on the sentencing
court’s additional finding by a preponderance of the evidence that Blakely
committed his kidnaping offense with deliberate cruelty—violated the Sixth
Amendment. Id. at ___, 124 S.Ct. at 2534-38.
We, however, have concluded that Blakely “does not undermine the validity
of minimum mandatory sentences, at least not where the enhanced minimum does
not exceed the non-enhanced maximum.” Spero v. United States, 375 F.3d 1285,
1286 (11th Cir. 2004), cert. denied, 125 S.Ct. 1099 (2005), and cert. denied, 125
S.Ct. 1345 (2005). We explained in Spero that “Blakely, like Apprendi, explicitly
distinguished minimum mandatory sentences from the circumstances involved in
those cases and indicated that McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct.
2411, 91 L.Ed.2d 67 (1986),[9] is still good law.” Spero, 375 F.3d at 1286. In the
9
In McMillan, the Supreme Court held that imposition of a minimum mandatory
sentence predicated upon a fact found by the judge by a preponderance of the evidence violates
neither Due Process nor the jury trial guarantee of the Sixth Amendment, so long as the statutory
maximum authorized by the jury’s verdict is not exceeded. See McMillan, 477 U.S. at 87-88, 93,
106 S.Ct. at 2416-17, 2420.
20
instant case, the statutory maximum for McKinney’s § 924(c) offense, without
reference to his possession of the assault weapon, was life imprisonment. See
Harris, 536 U.S. at 552-56, 122 S.Ct. at 2411-14 (holding that the current version
of § 924(c)(1) defines one offense, with a penalty ranging from five years’ to life
imprisonment). Because McKinney’s total 300-month sentence did not exceed
this maximum statutory sentence, no Apprendi error resulted.
Furthermore, to the extent McKinney is arguing that the court erred in
accepting his plea and sentencing him in Count 3 because his codefendant owned
the assault weapon and brought it into McKinney’s vehicle, the Supreme Court
determined in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d
472 (1995), that a conviction for “use” under § 924(c) requires “active
employment of the firearm,” as opposed to mere possession. Id., 516 U.S. at 143-
45, 116 S.Ct. at 506. We, however, have concluded that, “[a]lthough the Bailey
decision narrowed the scope of conduct for “use” of a firearm under § 924(c),
nothing in the opinion suggests that it was intended to provide criminals with
immunity from well-established doctrines of criminal law,” including the theory of
aiding and abetting.10 Bazemore, 138 F.3d at 949.
10
“Whoever . . . aids, abets, counsels, commands, induces or procures [a crime’s]
commission, is punishable as a principal.” See 18 U.S.C. § 2(a).
21
In Bazemore, we discussed that, to prove aiding and abetting, the
government must show “that a substantive offense was committed, that the
defendant associated himself with the venture, and that he committed some act
which furthered the crime.” Id. Thus, § 924(c) does not permit “guilt by
association.” Id. (quoting United States v. Thomas, 987 F.2d 697, 702 (11th Cir.
1993)). Despite this burden, however, we determined that the government in
Bazemore produced ample evidence linking the defendant to the gun because the
defendant (1) drove both the codefendants and the gun to a drug deal, and
(2) knowingly accepted the gun’s protection while he was inspecting the
marijuana. Bazemore, 138 F.3d at 749. In reaching this conclusion, we also
explained that (1) “once knowledge on the part of the aider and abettor is
established, it does not take much to satisfy the facilitation element”; (2) as the
driver of the vehicle, the defendant was “vital to the transportation of the weapon
during the commission of the drug crime”; and (3) the defendant could not
“knowingly benefit from the protection afforded by the firearm carried by his
companion and then subsequently evade criminal liability for its presence.” Id.11
11
We note, however, that, unlike McKinney’s challenge to his mandatory minimum
sentence, both Bailey and Bazemore involved attacks on the defendants’ convictions for using or
carrying a firearm in connection with a drug-trafficking crime, whereby the government had the
burden of showing guilt beyond a reasonable doubt. See Bailey, 516 U.S. at 138-39, 116 S.Ct. at
503; see also Bazemore, 138 F.3d at 948.
22
Here, McKinney admitted during his change-of-plea hearing that (1) there
were two firearms in the vehicle, (2) he knew of their presence, and (3) he drove
the vehicle while they sold drugs earlier in the day. McKinney also stated that,
although he did not own either firearm, he had bullets for the revolver, which was
recovered from the same general location in the vehicle as the assault weapon.
Moreover, McKinney conceded during his change-of-plea hearing on his
§ 922(g)(1) charge in Count 5 that the firearms were “where [he] could get to them
if [he] wanted to.” Thus, similar to the facts in Bazemore, McKinney knowingly
provided transportation for a drug transaction and accepted protection from the
assault weapon. The court, therefore, did not err in accepting McKinney’s plea to
Count 3 and in sentencing him based on his possession of the assault weapon
under the theory of aiding and abetting. See Bazemore, 138 F.3d at 749; see also
Rutledge v. United States, 138 F.3d 1358, 1559 (11th Cir. 1998) (concluding that
the defendant admitted to all of the elements required under the theory of aiding
and abetting by admitting to the government’s stipulation that the weapon was in
his possession and that it was used in connection with drug activities).12
12
As the district court recognized, we also have determined that the Supreme Court’s
decision in Bailey did not negate the applicability of the doctrine established in Pinkerton v.
United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 1184-85, 90 L.Ed.2d 1489 (1946). See
United States v. Diaz, 248 F.3d 1065, 1099 (11th Cir. 2001). Thus, criminal defendants remain
liable for the “reasonably foreseeable” actions of the co-conspirators—including the using or
carrying of a firearm during the commission of a crime of violence. See id.
23
Issue 4: Blakely/Booker Issue
In a brief he prepared prior to the Supreme Court’s decision in Booker,
McKinney argues in this last issue that the district court committed a Blakely
violation when it used the federal guidelines as an artificial guide to “fashion”
McKinney’s sentence. McKinney contends that courts may not apply the
guidelines, even in an advisory fashion, because they are facially unconstitutional.
Without citing to the record or caselaw, McKinney further asserts that the court
“would have given [him] a much lighter sentence had it not used the guideline as a
measuring stick,” and that court should have applied his consecutive mandatory
minimum statutory sentences because “mandatory minimums, etc., were intended
by Congress to act in conjunction with the Guidelines.”
Because McKinney timely raised a Blakely objection in the district court,
we review his Blakely/Booker claim on appeal de novo, but reverse only for
harmful error. See United States v. Paz, No. 04-14829, manuscript op. at 4 (11th
Cir. April 5, 2005) (citation omitted). “To find harmless error, [this Court] must
determine that the error did not affect the substantial rights of the parties.” Paz,
No. 04-14829, manuscript op. at 5 (quotation omitted). We further explained in
Paz as follows:
24
A constitutional error, such as a Booker error, must be disregarded as
not affecting substantial rights, if the error is harmless beyond a
reasonable doubt. This standard is only met where it is clear beyond
a reasonable doubt that the error complained of did not contribute to
the sentence obtained. The burden is on the government to show that
the error did not affect the defendant’s substantial rights.
Id. (internal quotations and marks omitted).
As discussed above, before McKinney’s sentencing hearing, the Supreme
Court, in the context of Washington state’s sentencing guideline scheme, held in
Blakely that “the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory
maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional
findings.” Blakely, 542 U.S. at ___, 124 S.Ct.at 2537 (emphasis in original). In a
footnote, however, the Supreme Court explicitly remarked that “[t]he Federal
Guidelines are not before us, and we express no opinion on them.” Id. at ___ n.9,
124 S.Ct. at 2538 n.9.
While the instant case was pending on appeal, the Supreme Court issued its
decision in Booker, finding “no distinction of constitutional significance between
the Federal Sentencing Guidelines and the Washington procedures at issue” in
25
Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional
question left open in Blakely, the Supreme Court held that the mandatory nature of
the federal guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending
its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its
rationale in Apprendi 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 a jury beyond a reasonable doubt.” Id. at ___, 125 S.Ct. at 756.
In a second and separate majority opinion, the Court in Booker concluded
that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of
1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.
§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)
and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de
novo review of departures from the applicable guideline range)—thereby
effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125
S.Ct. at 764. Thus, the guidelines range is now advisory; it no longer dictates the
final sentencing result but instead is an important sentencing factor that the
26
sentencing court is to consider, along with the factors contained in 18 U.S.C.
§ 3553(a).13 Id. at ___, 125 S.Ct. at 764-65).
Following the Supreme Court’s decision in Booker, and on remand, we re-
examined in United States v. Reese, 397 F.3d 1337 (11th Cir. 2005), a defendant’s
guideline sentence that had been enhanced, over objection, because the defendant
possessed a firearm in connection with another felony. Id. at 1337.14 Concluding
that the defendant’s sentence was in violation of the Sixth Amendment, we
vacated and remanded his case and ordered resentencing consistent with the
Supreme Court’s opinions in Booker. Id. at 1338.
In Paz, we similarly examined a Blakely/Booker challenge to a six-level
enhancement based on the district court’s factual finding, which was not admitted
13
These other relevant factors in § 3553(a) include: “(1) the nature and circumstances
of the offense and the history and characteristics of the defendant; (2) the need for the sentence
imposed–(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the
sentencing range established for . . . (A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines . . .; (5) any pertinent policy
statement []; (6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and (7) the need to provide
restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).
14
Prior the Supreme Court’s issuance of its decision in Booker, we had determined that
no error had occurred because Blakely did not apply to the federal guidelines. See United States
v. Reese, 382 F.3d 1308 (11th Cir. 2004), judgment vacated by Reese v. United States, ___ U.S.
___, 125 S.Ct. 1089, 160 L.Ed.2d 1058 (2005).
27
by the defendant, that the amount of loss from the defendant’s offense of
conviction was between $30,000 and $70,000, pursuant to U.S.S.G.
§ 2B1.1(b)(1)(D). Paz, No. 04-14829, manuscript op. at 2. We determined that,
because the defendant’s sentence was enhanced, under a mandatory guidelines
system, based on facts found by the judge, the defendant’s Sixth Amendment right
to a jury trial was violated. Id. at 5. Moreover, we determined that the
government could not show that this error was harmless beyond a reasonable
doubt because it was evident from the sentencing transcript that, had the court
used the guidelines in an advisory fashion, Paz’s sentence would have been
shorter. Id. at 6.15 We concluded, as such, that the constitutional error affected the
defendant’s substantial rights, and it remanded for resentencing consistent with
Booker. Id.
To the extent the court calculated McKinney’s guideline range based on
prior convictions or facts to which McKinney admitted during his change-of-plea
hearings, no error, harmless or otherwise, occurred. See United States v. Shelton,
400 F.3d 1325, 1329-30 (11th Cir. 2005) (concluding that the court did not err
when it enhanced defendant’s sentence based on (1) facts admitted by the
15
During the defendant’s sentencing hearing in Paz, the district court explicitly stated
that, if the guidelines were found unconstitutional, if would have sentenced the defendant to a
shorter term of imprisonment. See Paz, No. 04-14829, manuscript op. at 4.
28
defendant, or (2) his prior convictions)16; see also United States v. Camacho-
Ibarquen, No. 04-11155, slip op. at 1757-58 (11th Cir. March 30, 2005) (court did
not violate the defendant’s Sixth Amendment rights by applying an enhancement
based on his prior convictions); United States v. Orduno-Mireles, No. 04-12630,
slip op. at 1792-93 (11th Cir. April 6, 2005) (Booker is not implicated when a
defendant’s sentence is enhanced based on a prior conviction). More importantly,
unlike the facts in Reese and Paz, the court here only treated the federal guidelines
as advisory. Indeed, the court sentenced McKinney to his total minimum
mandatory statutory sentence of 300 months’ imprisonment, instead of within his
total guideline range of 330 to 382 months’ imprisonment. No violation of the
Sixth Amendment or Booker, therefore, occurred. See Booker, 543 U.S. at ___,
125 S.Ct. at 756.17
16
Although we determined that no Sixth Amendment violation occurred in Shelton, we
concluded that Booker error occurred and that this error was prejudicial under the third prong of
plain-error review because the district court considered the guidelines binding as opposed to
advisory, and the defendant showed on appeal that “there [was] a reasonable probability [that]
the district court would have imposed a lesser sentence [] if it had not felt bound by the
[g]uidelines.” See Shelton, 400 F.3d at 1330-32. On the other hand, as discussed below, no non-
constitutional error occurred in the instant case because the district court did not treat the
guidelines as mandatory.
17
In addition, because the district court correctly imposed the statutory mandatory
minimum sentence, any error in the guideline calculations is harmless. See United States v.
Raad, No. 03-15300, manuscript op. at 2 n.1 (11th Cir. April 21, 2005) (concluding that any error
in the guideline calculations was harmless because the district court correctly imposed the
statutory mandatory minimum sentence).
29
Furthermore, in adopting the PSI’s facts and calculations, the court, at least
implicitly, considered the PSI’s description of the offense conduct and
McKinney’s history and characteristics. In imposing a sentence below
McKinney’s guideline range, the court explicitly stated that, although it had
considered McKinney’s guideline range, it had concluded that his mandatory
minimum sentence was appropriate because he had attempted to cooperate, his
offenses involved “a fairly limited drug offense,” and his codefendant’s guideline
range was significantly less primarily because his codefendant had plead guilty
several days earlier than McKinney. Thus, the court properly considered the
nature and circumstances of the offense, McKinney’s character, and the need to
avoid unwarranted sentencing disparities between the codefendants. See 18
U.S.C. § 3553(a)(1)-(3), (6).
Accordingly, we conclude that the district court did not commit reversible
error in denying McKinney’s motion to withdraw his guilty plea to his § 924(c)
offense, imposing a mandatory minimum ten-year consecutive sentence based on
his conviction for this offense, or in sentencing him in light of Blakely and
Booker. We, therefore, affirm.
AFFIRMED.
30
United States v. Maurice Pernell McKinney
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-06-14
Citations: 135 F. App'x 313
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