[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________ APR 25, 2006
THOMAS K. KAHN
No. 04-12977 CLERK
_________________________
D.C. Docket No. 02-00585-CR-5-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY GREEN,
Defendant-Appellant.
_____________________________
Appeal from the United States District Court
for the Northern District of Georgia
_____________________________
(April 25, 2006)
Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN*, District Judge.
PER CURIAM:
Henry Green appeals his 235-month sentence, arguing that it was imposed in
*
Honorable Adalberto Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
violation of the Sixth Amendment under Blakely v. Washington, 542 U.S. 296 (2004),
and Booker v. United States, 543 U.S. 220 (2005). We agree, vacate the sentence, and
remand for resentencing.
BACKGROUND
A federal jury convicted Mr. Green of two offenses: (1) being a member of a
narcotics conspiracy whose objectives were to possess, with the intent to distribute,
five kilograms or more of cocaine and 1,000 kilograms or more of marijuana (Count
1); and (2) distribution of 100 kilograms or more of marijuana (Count 2). See 21
U.S.C. §§ 841, 846. The jury was not asked to make any further specific findings on
the amounts of cocaine and marijuana involved in the offenses.
The presentence investigation report attributed 89 kilograms of cocaine and
679 kilograms of marijuana to Mr. Green as relevant conduct under the Sentencing
Guidelines. Mr. Green’s counsel filed a written objection to this portion of the report,
arguing that the drug amounts should be limited to those found by the jury beyond a
reasonable doubt.
The sentencing hearing took place on June 2, 2004, about three weeks before
the Supreme Court rendered its decision in Blakely. At the hearing, Mr. Green’s
counsel again objected to the drug amounts set forth in the presentence investigation
report, asserting that the jury found only that the offenses involved five kilograms or
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more of cocaine and 1,000 kilograms or more of marijuana: “So the objection is that
because the jury found him guilty of those particular amounts that are set forth in the
verdict form, those are the amounts he should be sentenced upon.” R16:6. The
prosecutor explained to the district court that co-defendant Corey Lewis had testified
at trial that Mr. Green had assisted him in removing 89 kilograms of cocaine that were
hidden in a truck and in storing the cocaine for later pickup. The prosecutor also told
the district court that co-defendant Byron Knight had testified at trial and
corroborated the cocaine transaction, though he did not specify the amount of cocaine
involved. R16:9-11.
The district court said that it recalled the evidence at trial the same way, and
that with the combination of between 400 to 700 kilograms of marijuana – the amount
the court found in sentencing some of Mr. Green’s co-defendants – and 89 kilograms
of cocaine, Mr. Green had an offense level of 36. R16:11. Mr. Green’s counsel
responded that he was asking for an extension of “Apprendi [v. New Jersey, 530 U.S.
466 (2000)] and that line of cases,” though he recognized that his argument did not
“have current support in the case law.” R16:12. The district court “overrule[d] [the]
objection to the drug amounts,” and placed Mr. Green at an offense level of 36.
R16:12.
The district court declined to give Mr. Green a mitigating role or an
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aggravating role under the Sentencing Guidelines, and chose not to depart under
USSG § 5K2.0. R16:21-26. Finally, the district court assessed a two-level
enhancement for obstruction of justice – due to Mr. Green’s false testimony during
trial – under USSG § 3C1.1. Mr. Green’s counsel objected to this enhancement as
well, though not on Apprendi grounds. R16:26-27. Mr. Green did not receive any
safety-valve adjustment under USSG § 5C1.2, so the district court’s rulings left Mr.
Green with an offense level of 38 and an imprisonment range of 235-293 months
under the Sentencing Guidelines. Applying the Sentencing Guidelines in a
mandatory fashion, the district court sentenced Mr. Green to 235 months’
imprisonment, the low end of the range. During the sentencing hearing, the district
court noted that Congress had “chosen to punish [narcotics offenses] very severely.”
R16:26. It also indicated that it was required to impose a stiff sentence under the
Sentencing Guidelines: “It’s a very severe penalty I’ve got to impose on you, Mr.
Green.” R16:29.
DISCUSSION
At the sentencing hearing, the district court made certain findings – as to the
amount of drugs involved and obstruction of justice – that increased Mr. Green’s
offense level and resulting imprisonment range under the Sentencing Guidelines. It
then applied the Sentencing Guidelines in a mandatory fashion, as required by the law
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of this Circuit at the time.
Contrary to the government’s argument, Mr. Green’s counsel preserved his
Sixth Amendment claim – at least as to the drug amounts found by the district court
– by invoking the Supreme Court’s decision in Apprendi and arguing that the drug
amounts should be limited to those found by the jury. See United States v. Dowling,
403 F.3d 1242, 1245 (11th Cir. 2005). This, therefore, is not a case involving plain
error review. Instead, review is de novo. See United States v. Paz, 405 F.3d 946,
948 (11th Cir. 2005)
Under our post-Booker precedent, the district court committed constitutional
error by sentencing Mr. Green under a mandatory guidelines system based on
contested factual findings made at the sentencing hearing. See United States v.
Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005) (“Booker [holds] that the Sixth
Amendment right to trial by jury is violated where under a mandatory guidelines
system a sentence is increased based on facts found by the judge that were neither
admitted by the defendant or found by a jury.”). The government can, of course,
show that a Booker constitutional error was harmless beyond a reasonable doubt, see
Paz, 405 F.3d at 948-49, but it has not tried to do so in this case. And even if it had
attempted to make such a showing, it would not have succeeded given the remarks
made by the district court concerning the severe punishment it was required to
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impose on Mr. Green under the Sentencing Guidelines.
CONCLUSION
Mr. Green’s sentence is vacated, and the case is remanded for resentencing
consistent with Booker and its progeny.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
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