[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 02-10402 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 08, 2003
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 94-00025-CR-E-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAJA ZAMBROWSKI DAVIS,
MORRIS RAMSEY, a.k.a. “Fade”,
Defendants-Appellants.
________________________
No. 02-11913
Non-Argument Calendar
________________________
D.C. Docket No. 94-00025-CR-E
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSSIE ORLANDO MCCAULEY, III,
Defendant-Appellant.
__________________________
Appeals from the United States District Court for the
Middle District of Alabama
_________________________
(May 8, 2003)
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
These appeals arise from the convictions of Appellants Jaja Zambrowski
Davis, Morris Ramsey and Ossie O. McCauley, III, for various offenses. Davis
was convicted of conspiring to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and distributing cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). Ramsey was convicted of conspiring to distribute cocaine base and
distributing cocaine base. McCauley was convicted of conspiring to distribute
cocaine base, distributing cocaine base, and using and carrying a firearm during
the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
Davis, Ramsey, and McCauley were sentenced to 480, 292, and 350 months’
imprisonment, respectively. Appellants raise three issues with respect to their
sentencing. First, Appellants contend the district court erred by resentencing them
without affording them a new evidentiary hearing. Second, Appellants contend
the district court abused its discretion by stacking their sentences to run
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consecutively rather than concurrently, pursuant to United States Sentencing
Commission, Guidelines Manual, § 5G1.2. Third, Appellants contend the
imposition of consecutive sentences violates their due process rights under the
Fifth Amendment.
I.
Appellants and others participated in a large crack cocaine distribution ring
in Lanett, Alabama. Following a jury trial in March, 1994, Appellants were found
guilty of conspiring to distribute crack cocaine, as well as possession of varying
amounts of crack cocaine. Appellants Davis, Ramsey, and McCauley were
sentenced to 211, 169, and 229 months’ imprisonment, respectively. Following an
unsuccessful direct appeal, Appellants attacked their sentences pursuant to 28
U.S.C. § 2255. The district court granted Appellants’ § 2255 applications, finding
appellate counsel acted ineffectively by failing to require the district court to make
individualized findings concerning the scope of the conspiracy and the amount of
drugs attributable to each defendant.
On November 29, 1999, the district court held an evidentiary hearing and
received new evidence to help it determine the quantity of drugs for which each
defendant should be held responsible. The court resentenced Davis, Ramsey, and
McCauley to life, 300 months’, and life imprisonment, respectively. Appellants
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appealed, and this Court affirmed in part and reversed in part, noting the district
court re-sentenced Appellants without the benefit of the rule announced by the
Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
On remand, Appellants argued they were entitled to be sentenced de novo
because their previous sentences had been “vacated” by this Court. The
Government objected, arguing the Eleventh Circuit mandate restricted the range of
issues that could be considered on remand. The district court agreed with the
Government, and without the benefit of a new evidentiary hearing, sentenced
Davis, Ramsey, and McCauley to 480, 292, and 350 months’ imprisonment,
respectively. The court interpreted U.S.S.G. § 5G1.2(d) to require that Appellants’
sentences run consecutively rather than concurrently so that the appropriate
guidelines range could be achieved.
II.
A. De novo sentencing
Appellants contend the district court erred by declining to sentence them de
novo. They note that the district court did not afford them a new hearing at
resentencing, despite our opinion vacating their sentences and upholding the
district court’s authority to receive new evidence at resentencing. According to
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Appellants, this violated the court’s obligation to employ a “holistic approach” to
sentencing. United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).
We review a district court’s application of the sentencing guidelines de
novo. United States v. Hunerlach, 258 F.3d 1282, 1285 (11th Cir. 2001). When a
criminal sentence is vacated, a district court is generally free to reconstruct the
sentence using any of the sentencing components. Stinson, 97 F.3d at 469. If the
appellate court issues a limited mandate, however, the trial court is restricted in the
range of issues it may consider on remand. United States v. Tamayo, 80 F.3d
1514, 1520 (11th Cir. 1996). A vacation of judgment for consideration in light of
a particular decision is “‘much more limited in nature’ than a general vacation by
an appellate court, and its effect is ‘not to nullify all prior proceedings.’” Id.
(quoting United States v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir.
1992)).
In our August 8, 2001, order vacating Appellants’ sentences, we remanded
this case to the district court so that it might have the benefit of the intervening
rule announced in Apprendi, 530 U.S. at 466, 120 S. Ct. at 2348. We stated, “[i]n
that respect we vacate the sentences of Appellants Davis, McCauley, and Ramsey
and remand for resentencing or a new trial. In all other respects, however, we find
no merit in Appellants’ arguments on appeal and affirm the district court.” United
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States v. Davis, No. 00-11608, slip op. at 19 (11th Cir. Aug. 8, 2001). On remand,
the district court determined it could rely on the evidence already presented to
resolve the Apprendi issue. This determination obviated Appellants’ entitlement to
have new evidence presented prior to resentencing. Tamayo, 80 F.3d at 1520. The
district court properly declined to hear new evidence at Appellants’ resentencing
hearing.
B. U.S.S.G. § 5G1.2(c) & (d)
Appellants contend the district court abused its discretion by imposing
consecutive sentences pursuant to U.S.S.G. § 5G1.2(d). They argue the sentencing
guidelines require the court to impose a concurrent sentence where, as here, the
total punishment imposed on the § 841 count was less than or equal to the highest
statutory maximum. U.S.S.G. § 5G1.2(c). Citing cases from other circuits,
Appellants contend sentencing courts are authorized to exercise alternative
sentencing configurations to avoid manifest injustice and prejudice to the
defendant. Furthermore, Appellants contend the district court’s imposition of
consecutive sentences violates the rule in Apprendi, in that the total term of
imprisonment exceeds the guideline range for any count for which Appellants were
convicted.
1. Application of U.S.S.G. § 5G1.2(d)
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The Sentencing Reform Act of 1984 provides, “If multiple terms of
imprisonment are imposed on a defendant at the same time . . . the terms may run
concurrently or consecutively . . . . Multiple terms of imprisonment imposed at the
same time run concurrently unless the court orders or the statute mandates that the
terms are to run consecutively. Multiple terms of imprisonment imposed at
different times run consecutively unless the court orders that the terms are to run
concurrently. ” Sentencing Reform Act of 1984 § 212(a)(2), 18 U.S.C. § 3584.
U.S.S.G. § 5G1.2(d), however, provides that, when there are multiple counts of
conviction,
[i]f the sentence imposed on the count carrying the highest statutory
maximum is less than the total punishment, then the sentence imposed
on one or more of the other counts shall run consecutively, but only to
the extent necessary to produce a combined sentence equal to the total
punishment. In all other respects, sentences on all counts shall run
concurrently, except to the extent otherwise required by law.
Appellants note that despite the clear dictate of § 5G1.2(d), this Circuit has
never directly addressed the question of whether the district court retains the
discretion to sentence a defendant to concurrent terms of imprisonment when
§ 5G1.2(d) calls for consecutive terms of imprisonment. A majority of other
circuits have held that the imposition of consecutive sentences under § 5G1.2(d) is
mandatory. See United States v. Diaz, 296 F.3d 680, 684-85 (8th Cir.), cert.
denied, 123 S. Ct. 43 (2002); United States v. Price, 265 F.3d 1097, 1109 (10th
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Cir. 2001), cert. denied, 122 S. Ct. 2299 (2002) (mem.); United States v. Kentz,
251 F.3d 835, 842 (9th Cir. 2001), cert. denied, 122 S. Ct. 1309 (2002) (mem.);
United States v. Angle, 254 F.3d 514, 518-19 (4th Cir.), cert. denied, 122 S. Ct.
309 (2001) (mem.); United States v. Page, 232 F.3d 536, 544-45 (6th Cir. 2000).
But see United States v. Velasquez, 304 F.3d 237, 242-43 (3d Cir. 2002) (holding
that the district court retained the discretion under 18 U.S.C. § 3854 to run
sentences concurrently without departing even when § 5G1.2(d) applies); United
States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001) (indicating that the
application of § 5G1.2(d) is discretionary).
A review of the law of this Circuit indicates that we are inclined to join the
majority of our sister circuits. See United States v. Gallego, 247 F.3d 1191, 1200
n.19 (11th Cir 2001), cert. denied, 122 S. Ct. 820 (2002) (mem.) (indicating in
dicta that no error existed because, if the case were remanded, the district court
would be required under § 5G1.2(d) to stack the defendant’s sentences and reach
the same result); United States v. Fortenberry, 971 F.2d 717, 723 (11th Cir. 1992)
(finding no error in the district court’s imposition of consecutive sentences under
the “express mandate” of § 5G1.2(d)). The reason for this is evident: the directive
of the Sentencing Reform Act is not inconsistent with the mandates of § 5G1.2(d).
The Sentencing Reform Act simply establishes a default rule of construction for
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sentences; unless a district court specifically orders otherwise, multiple terms of
imprisonment imposed at the same time are to run concurrently. The Act
recognizes that a district court may order multiple terms of imprisonment to run
consecutively, but (crucially for our decision) it does not give any guidance as to
when a district court may or may not order such consecutive sentences. Section
5G1.2(d) does give specific guidance on when a district court should order
consecutive sentences—it mandates such consecutive sentence whenever
“necessary to produce a combined sentence equal to the total punishment.”
U.S.S.G. § 5G1.2(d). The guideline thus speaks to an issue not directly addressed
in the Sentencing Reform Act, and the guideline’s mandate cannot conflict with
statutory silence. Just as in every other case, the district court is obligated to
follow the requirements of the guidelines. U.S.S.G. Ch.1, Pt.A.2, intro. comment.
(“Pursuant to the [Sentencing Reform] Act, the sentencing court must select a
sentence from within the guideline range.”). We therefore hold that the district
court properly interpreted § 5G1.2(d) to require the imposition of consecutive
sentences on Appellants where the sentence imposed on the § 841 count was less
than the total punishment for Appellants’ aggregate convictions.
2. Application of Apprendi
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The rule in Apprendi only applies where a defendant is sentenced above the
statutory maximum sentence for an offense. United States v. Sanchez, 269 F.3d
1250, 1268 (11th Cir. 2001) (en banc). Apprendi does not prohibit a sentencing
court from imposing consecutive sentences on multiple counts of conviction as
long as each is within the applicable statutory maximum. United States v. Smith,
240 F.3d 927, 930 (11th Cir. 2001) (holding there is no Apprendi error where the
sentence imposed is less than the aggregate statutory maximum for multiple
convictions); see also Sanchez, 269 F.3d at 1268 (holding “Apprendi has no effect
on cases in which a defendant's actual sentence falls within the range prescribed by
the statute for the crime of conviction”).
Under the guidelines, Appellant Davis could have been sentenced to life
imprisonment. However, the statutory maximum sentence for each count for
which Appellant Davis was convicted is 20 years. 21 U.S.C. § 841(b)(1)(C).
Accordingly, in an attempt to meet the minimum total punishment mandated by the
guidelines, the district court imposed a total sentence of 480 months’
imprisonment, consisting of 240 months’ imprisonment on Count 1 and 240
months’ imprisonment on count 17, to run consecutively. This sentence did not
exceed the statutory maximum for either count. Thus, there was no Apprendi error
as to Appellant Davis’ sentence.
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Appellant Ramsey could have been sentenced under the guidelines to 292 to
365 months’ imprisonment. However, the statutory maximum sentence per count
on the drug charges for which Appellant Ramsey was convicted is 20 years’
imprisonment. 21 U.S.C. § 841(b)(1)(C). In order to satisfy the guidelines, the
district court imposed a total sentence of 292 months’ imprisonment, consisting of
232 months’ imprisonment on Count 1 and 60 months’ imprisonment on Count 23,
to run consecutively. Again, this sentence did not exceed the statutory maximum
for either count. Thus, there was no Apprendi error as to Appellant Ramsey’s
sentence.
Appellant McCauley could have been sentenced under the guidelines for
324 to 405 months’ imprisonment. However, the statutory maximum sentence per
count on the drug charges for which he was convicted is 20 years’ imprisonment
and the maximum on the weapons count was 5 years’ imprisonment. 21 U.S.C.
§ 841(b)(1)(C); 18 U.S.C. § 924(c)(1). In order to satisfy the guidelines, the
district court imposed a total sentence of 350 months’ imprisonment, consisting of
240 months’ imprisonment on Count 1, 60 months’ imprisonment on Count 10,
and 50 months’ imprisonment on Count 15, to be served consecutively. Again, this
sentence did not exceed the statutory maximum for any of the counts. There is no
Apprendi error as to Appellant McCauley’s sentence.
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C. Fifth Amendment due process
Appellants contend the district court violated their Fifth Amendment due
process rights by subjecting them to consecutive sentences. They challenge the
court’s failure to conduct a de novo resentencing hearing, as well as the court’s
compliance with our remand order. They also raise issue with the length of the
terms of imprisonment to which they have been sentenced.
A defendant’s due process rights may be violated “when a sentence is
enhanced after the defendant has served so much of his sentence that his
expectations as to finality have crystallized and it would be fundamentally unfair
to defeat them.” United States v. Watkins, 147 F.3d 1294, 1298 n.5 (11th Cir.
1998) (quoting United States v. Lundien, 769 F.2d 981, 987 (4th Cir. 1985)); see
also Burton v. Goodlett, 480 F.2d 983, 986 (5th Cir. 1973) (due process violated
when a heavier sentence is imposed to punish the defendant for getting his original
conviction set aside).1
Appellants’ present sentences are either significantly shorter or substantially
similar to their prior sentences. Moreover, Appellants present no facts suggesting
1
In Bonner v. City of Prichard, 661 F.2d 1206,1209 (11th Cir. 1981) (en banc), this Circuit
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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the district court resentenced them to consecutive sentences so as to punish them.
Appellants’ due process rights have not been compromised.
AFFIRMED.
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