[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 27, 2005
No. 03-15141 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-14010-CR-JCP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNSLEY TONY,
a.k.a. Eiensley Thony, etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2005)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Following resentencing, Appellant Ernsley Tony appeals his 210-month
sentences for conspiracy to possess with intent to distribute cocaine base, in
violation of 21 U.S.C. § 846 (Count One), and possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Count Three). Tony raises
three issues on appeal. First, Tony asserts that the district court erred under
Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), by
enhancing his sentences based on facts not alleged in the indictment nor found by a
jury. Second, he argues that the district court erred by denying his request for
funds to retain a mental health expert prior to resentencing because he gave proper
notice and he was entitled to a psychiatrist’s assistance. Third, he contends that the
district court erred in applying the obstruction-of-justice enhancement under
U.S.S.G. § 3C1.1 because both the revised presentence investigation report
(“RPSI”) and the district court failed to identify the specific perjured statements
Tony made at trial that were material and significantly obstructed the prosecution.
As discussed further herein, because we vacate and remand as to the first issue, the
second and third issues are moot.
Tony argues that the district court erred by sentencing him above the
maximum sentence allowed by law based on facts not alleged in the indictment nor
found by a jury. He contends that, under Blakely, a judge may not impose a greater
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punishment after finding additional facts than the maximum sentence that could be
imposed without any additional findings. Tony asserts that the jury did not decide
whether he obstructed justice. He further contends that, because his indictment did
not allege a quantity of crack cocaine, and the jury did not determine the drug
amount or that he obstructed justice, his offense level should have been 12, which
would have yielded a guideline range of 21 to 27 months’ imprisonment.
According to Tony, he preserved the issue of drug quantity by objecting during his
allocution at his resentencing hearing. He argues that the erroneous application of
the guidelines affected his substantial rights because the jury could have attributed
to him less than the total crack involved because he had two codefendants. He
contends that the district court plainly erred in applying the obstruction-of-justice
enhancement because the court’s factual findings invaded the province of the jury,
which affected the fairness, integrity, and public reputation of the proceedings.
Because Tony failed to properly preserve this objection, we review only for
plain error. To satisfy the plain-error standard, we must find that (1) the district
court committed “error,” (2) the error was plain or obvious, and (3) the error
“affected substantial rights” in that the error was prejudicial and not harmless.
United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d
508 (1993). If these criteria are met, we may, in our discretion, correct the plain
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error if it “seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736, 113 S.Ct. at 1779 (internal quotations and citation
omitted).
While the instant case was pending on appeal, the Supreme Court issued its
decision in United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), finding 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 United States v. Rodriguez, ___F.3d ___, No. 04-12676 (11th Cir. Feb. 4,
2005), we rejected a defendant’s Booker claim under plain-error review, holding
that the “error” in Booker was the use of extra-verdict enhancements under a
mandatory system, not the use of extra-verdict enhancements to increase a
defendant’s guideline range. Id. at ___. We stated that, to satisfy the third prong
of the plain-error test, a defendant
must establish a reasonable probability that if the district court had
considered the guidelines range it arrived at using extra-verdict
enhancements as merely advisory, instead of mandatory, and had
taken into account any otherwise unconsidered [18 U.S.C.] § 3553
factors, the court would have imposed a lesser sentence than it did.
Id.
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In United States v. Shelton, ___F.3d ___, No. 04-12602 (11th Cir. Feb. 25,
2005), we held that a defendant who fails to object to the facts in the PSI has
admitted to the facts and, consequently, there is no Sixth Amendment violation
under Booker. Shelton, ___ F.3d at ___. We also held that a Booker error occurs
when a district court sentences a defendant “under a mandatory Guidelines scheme,
even in the absence of a Sixth Amendment violation.” Id. at ___. Furthermore,
Booker “made plain the district court’s error in sentencing [the defendant] under a
mandatory Guidelines scheme that is now advisory.” Id. at ___. In addition, we
held in Shelton that, where the district court had indicated that the sentence was
“too severe,” sentenced the defendant to the lowest possible sentence under the
Guidelines, and stated that the sentence was “more than appropriate,” the defendant
had established a reasonable probability that the district court would have imposed
a lesser sentence. Id. at ___. Furthermore, we held that the fourth prong of plain
error analysis was satisfied as well, because the district court “indicated an express
desire to impose a sentence lesser than the low end of the Guidelines range . . . and
the Supreme Court in Booker plainly indicated that the district court now has the
discretion to do so, provided the resulting sentence is reasonable in light of the
§ 3553(a) factors.” Id. at ___.
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After reviewing the record, we conclude that Tony has shown a Booker error
for both the drug quantity and the obstruction-of-justice enhancement because the
district court “misapplie[d] the Guidelines by considering them binding as opposed
to advisory.” See id. at ___. Additionally, this error was plain under Booker. See
id. Because the district court (1) stated that it wished to consider Tony’s personal
background, but was prevented from doing so by the Guidelines, (2) stated that the
sentence was “too heavy” for the crime Tony had committed, and (3) sentenced
Tony to the lowest possible sentence under the Guidelines, there is a “reasonable
probability that the district court would have imposed a lesser sentence.” Id. at
___. The district court’s indication of a desire to sentence Tony to a lesser
sentence and to consider his personal history and characteristics, which are factors
set forth for consideration under § 3553(a), satisfies the fourth prong of the plain
error test. Id. at ___. Therefore, the district court plainly erred in sentencing Tony
under a mandatory Guidelines scheme, and this error affected his substantial rights
as well as the fairness, integrity or public reputation of the judicial proceedings in
his case.
For the foregoing reasons, we vacate Tony’s sentences and remand this case
for resentencing.
VACATED AND REMANDED.
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