[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 19, 2005
No. 04-12786 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00254-CR-T-17-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOWARD DUFFIS CLAUDIO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 19, 2005)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Howard Duffis Claudio appeals his sentence imposed after pleading guilty to
one count of conspiracy to distribute five kilograms or more of cocaine, while
aboard a vessel subject to the jurisdiction of the United States, in violation of 46
App. U.S.C. § 1903(a), (g), (j), 21 U.S.C. § 960(b)(1)(B)(ii). We vacate and
remand for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005).
I. DISCUSSION
A. Guilty plea
Claudio asserts his plea was not knowing and voluntary because he was
unaware the Government would have to prove the quantity of cocaine involved if
he went to trial, in light of Blakely v. Washington, 124 S. Ct. 2531 (2004) and
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).1 Moreover, he claims the district
court should have advised him about the drug amount before accepting his plea, so
he would have understood the nature of the charge to which the plea was offered.
Claudio maintains that because the district court did not advise him of the essential
element of the offense, drug quantity, when going over the crime at the plea or
sentencing hearings, it erred in proceeding to sentence him.
1
In Apprendi, 120 S. Ct. at 2362–63, the Supreme Court held, “[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.” In Blakely, the
Supreme Court, examining the State of Washington’s sentencing guidelines, held the imposition
of a sentencing enhancement must be supported by facts that were either admitted by the
defendant or found beyond a reasonable doubt by the jury. Blakely, 124 S. Ct. at 2537–38.
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If no objection was made to the Federal Rule of Criminal Procedure 11
colloquy, we review for plain error. United States v. Monroe, 353 F.3d 1346, 1349
(11th Cir. 2003). A court accepting a guilty plea must comply with Rule 11,
including addressing “the three ‘core objectives’ of Rule 11, which are:
(1) ensuring the guilty plea is free of coercion; (2) ensuring the defendant
understands the nature of the charges against him; and (3) ensuring that the
defendant is aware of the direct consequences of the guilty plea.” Id. at 1354.
Because Claudio did not object to his Rule 11 colloquy, he must show plain
error on direct appeal. He cannot do this. Although Claudio argues he was coerced
into pleading guilty based on the fact he did not know the Government was required
to prove the quantity of drugs element of the conspiracy offense, he was specifically
questioned about whether he understood this charge. After acknowledging he did
understand, he indicated he still wished to plead guilty. The record demonstrates
(1) the magistrate complied with Rule 11 to ensure that Claudio’s plea was knowing
and voluntary, (2) Claudio admitted to the quantity of drugs element, and (3) he
understood the elements of the conspiracy charge when he pled guilty to it. Thus,
his plea was both knowing and voluntary, and Blakely has no impact on the validity
of his plea. See e.g. Brady v. United States, 90 S. Ct. 1463 (1970) (indicating “a
voluntary plea of guilty intelligently made in the light of the then applicable law
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does not become vulnerable because later judicial decisions indicate that the plea
rested on a faulty premise”).
B. Constitutionality of statute
Claudio argues 21 U.S.C. § 841 is unconstitutional pursuant to Apprendi, and
the district court relied on that statute in sentencing him for a 21 U.S.C. § 846
conspiracy. We note Claudio pled guilty pursuant to 46 App. U.S.C. § 1903(a), (g),
and (j), and was sentenced pursuant to 21 U.S.C. § 960(b)(1)(B)(ii). Accordingly,
his argument is construed to challenge the constitutionality of these statutes.
We have held § 1903 and the penalty provisions of § 960 are not
unconstitutional and “[t]here is constitutional error under Apprendi . . . in the 21
U.S.C. § 960 context only if the sentencing judge’s factual finding actually
increased the defendant’s sentence above the statutory maximum found in
§ 960(b)(3), and only if the fact that led to the enhanced sentence was not charged
in the federal indictment or submitted to the jury for proof beyond a reasonable
doubt.” United States v. Tinoco, 304 F.3d 1088, 1101 (11th Cir. 2002).
Because (1) the statutory maximum pursuant to § 960(b)(3) is 20 years’
imprisonment, and Claudio was sentenced to 168 months, i.e., 14 years; and (2) the
indictment charged him with conspiracy to distribute five kilograms or more of
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cocaine, and Claudio admitted that five or more kilograms of cocaine were involved
in the offense, the statute is not unconstitutional as applied here.
C. Sentencing Guidelines
Finally, Claudio argues, pursuant to Blakely and Apprendi, the district court
erred in sentencing him pursuant to the Sentencing Guidelines based on the drug
quantity determined by the district court at sentencing. We review for plain error
those issues for which timely objections were not made in the district court. United
States v. Olano, 113 S. Ct. 1770, 1776 (1993). To prevail under a plain-error
standard, the appellant must show (1) there is error; (2) that is plain; and (3) the
plain error affects substantial rights. Olano, 113 S. Ct. at 1776. Once the appellant
proves these three elements, this Court may notice the error only if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(internal quotations and citations omitted).
1. Sixth Amendment
“A stipulation to a specific [fact]—whether as part of a written plea
agreement, part of a jury trial, or at sentencing—serve[s] as the equivalent of a jury
finding on that issue, since the stipulation takes the issue away from the jury” and
this rule applies not only when the defendant takes the affirmative step of
stipulating to a particular fact, but also when the defendant fails to object to or
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contest the particular finding at issue. See United States v. Sanchez, 269 F.3d 1250,
1271 n.40 (11th Cir. 2001) (en banc).
Claudio’s base offense level of 38 under U.S.S.G. § 2D1.1(c)(3) is for
offenses involving at least 150 kilograms of cocaine. Claudio fails the first prong of
the plain error test because Claudio’s sentence was not enhanced as a result of
judicial findings as to drug quantity that went beyond the facts admitted by him.
Claudio did not object to the Presentence Investigation Report (PSI) statement that
the conspiracy involved 1,982 kilograms of cocaine. Additionally, at sentencing he
stated he did not object to the factual accuracy of the information contained in the
PSI. Claudio further signed the plea agreement, which included a factual statement
indicating that over 2,000 kilograms of cocaine were in the vessel. Because
Claudio admitted the drug quantity used for his sentence, there is no Sixth
Amendment violation under Booker in this case. See United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005).
2. Mandatory/Advisory
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, thereby
effectively rendering the Sentencing Guidelines advisory rather than mandatory.
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Booker, 125 S. Ct. at 764 (opinion of Breyer, J.). The Court indicated that both its
“Sixth Amendment holding and . . . remedial interpretation of the Sentencing Act”
must be applied “to all cases on direct review.” Id. at 769.
Here, there is error that is plain because the district court treated the
Guidelines as mandatory. See Shelton, 400 F.3d at 1331. In applying the third
prong of the plain error test, “we ask whether there is a reasonable probability of a
different result if the guidelines had been applied in an advisory instead of binding
fashion by the sentencing judge in this case.” United States v. Rodriguez, 398 F.3d
1291, 1301 (11th Cir. 2005). “To establish the third prong takes something more
than showing the district court sentenced within the Guidelines range and felt bound
to do so, especially given that the Guidelines range remains an important factor in
sentencing.” Shelton, 400 F.3d at 1332.
In this case, there is a reasonable probability of a different result. The district
judge sentenced Claudio at the low end of the guidelines, and stated “It’s the
intention of the Court to sentence you at the low end . . . I recognize that you did
what you did out of your need and the poverty that [you are] in in Col[o]mbia.”
The district judge then went on to discuss how she understood Claudio committed
this crime out of desperation. She stated “[y]ou have been taken advantage of and
abused again in your life by these people who are higher up the ladder who don’t
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care about you, agree to pay you some money, and because of your need and your
desperation, you do what you do. They don’t care whether you are caught or not.”
The judge went on to say, “[b]ut for right now I have no choice. I am
required—required to impose this sentence upon you.” All of these comments
taken together convince us there is a reasonable probability the district court would
have imposed a lesser sentence in Claudio’s case if it had not felt bound by the
Guidelines. See id. at 1332–33.
We further find the fourth prong of plain error is met here. There is a
reasonable probability the district court would have imposed a lesser sentence, and
the Supreme Court in Booker indicated the district court now has the discretion to
do so, provided the resulting sentence is reasonable in light of the 18 U.S.C.
§ 3553(a) factors. See id. at 1333–34. The plain error that affected Claudio’s
substantial rights also seriously affected the fairness, integrity or public reputation
of the judicial proceedings in this case. Thus, the district court plainly erred in
sentencing Claudio under a mandatory Guidelines system.
II. CONCLUSION
The district court did not err in proceeding to sentence Claudio after
accepting his plea. Additionally, 21 U.S.C. § 960 is not unconstitutional as applied
to Claudio. The district court plainly erred, however, in sentencing Claudio
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pursuant to a mandatory Guidelines system. Accordingly, we vacate Claudio’s
sentence and remand for resentencing consistent with Booker.
VACATED AND REMANDED.
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