[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13117 September 2, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00154 CR-2-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC ORLANDO REESE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(September 2, 2004)
Before ANDERSON and BIRCH, Circuit Judges, and LAND*, District Judge.
ANDERSON, Circuit Judge:
Eric Orlando Reese appeals his conviction and sentence imposed for being a
*
Honorable Clay D. Land, United States District Judge for the Middle District of
Georgia, sitting by designation.
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A jury
convicted Reese of this offense on December 16, 2002. At sentencing, the district
court imposed a four-level enhancement pursuant to USSG § 2K2.1(b)(5),
possessing a firearm in connection with another felony, because officers found
28.40 grams of cocaine base, 1.75 grams of marijuana, and a digital scale in the
glove compartment of the automobile in which the firearm was located. The
district court also imposed a two-level enhancement pursuant to USSG §
2K2.1(b)(4) because the firearm was stolen. Reese timely appealed. He challenges
on appeal: 1) the sufficiency of the evidence to support his underlying conviction;
and 2) the fact that the factual finding supporting his four-level enhancement
imposed pursuant to 2K2.1(b)(5) was made by the district court instead of by the
jury.
After oral argument and careful consideration, we reject without need for
further discussion Reese’s challenge to the sufficiency of the evidence supporting
his underlying conviction for being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1).
Reese’s remaining argument in his initial brief is that the district court
invaded the province of the jury by finding that the firearm was possessed in
connection with another felony offense. Reese sufficiently and timely raised this
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constitutional objection based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348 (2000), in the district court. See United States v. Candelario, 240 F.3d
1300, 1304 (11th Cir. 2001). Because Reese made a timely constitutional
objection, he is entitled to the benefit of preserved error review. See id.
After the initial briefing in this case, the Supreme Court decided Blakely v.
Washington, ___ U.S. ___, 124 S. Ct. 2531 (June 24, 2004). In Blakely, the
Supreme Court applied the rule set out in Apprendi, and held that the imposition –
based solely on the sentencing judge's factual findings – of a sentencing
enhancement above the 53 month standard range indicated in the State of
Washington's Sentencing Reform Act violated Blakely's Sixth Amendment rights
because the facts supporting the findings were neither admitted by Blakely nor
found by a jury beyond a reasonable doubt. Because Reese raised in his initial
brief a similar challenge to that raised by Blakely – namely that the factual finding
supporting the enhancement should have been made by the jury beyond a
reasonable doubt instead of by the sentencing judge – we ordered supplemental
briefing with respect to the impact of Blakely on the Federal Sentencing Guidelines
("Guidelines") as applied in this case.1 Because Reese preserved this argument
1
In his initial brief, Reese made the Apprendi-type argument only with respect to
the § 2K2.1(b)(5) enhancement (four levels because the firearm was possessed in connection
with another felony). He did not raise this issue with respect to the stolen firearm enhancement
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below, we must determine the impact of the Supreme Court's opinion in Blakely on
the Guidelines.
The most significant aspect of Blakely was the Supreme Court's change with
respect to the underlying assumption of what constitutes the relevant maximum for
Apprendi purposes. The Court in Blakely looked to the standard range for second
degree kidnaping as stated in the Washington Sentencing Guidelines, 53 months,
instead of the 10 years authorized under another Washington statute for class B
felonies. Blakely, 124 S. Ct. at 2537. As noted by the Fifth Circuit in United
States v. Pineiro, 377 F.3d 464 (5th Cir. July 12, 2004), the constitutional fate of
the Guidelines after Blakely depends upon whether they are viewed: 1) like the
Washington statute as defining different offenses with different maximum
sentences, such that a Guideline sentencing range unenhanced by judicial fact
finding sets a "maximum sentence" for purposes of Apprendi; or 2) as a tool for
channeling the sentencing court's discretion within a specific crime's minimum and
imposed pursuant to § 2K2.1(b)(4). Reese did not challenge the § 2K2.1(b)(4) enhancement in
any way in his initial brief, a fact that he concedes in his supplemental brief, stating that this
enhancement was not “specifically referenced or challenged by counsel on appeal.” Accordingly,
Reese is not entitled to have this court entertain any argument with respect to the § 2K2.1(b)(4)
enhancement. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) ("Defendant
abandoned the [Apprendi] indictment issue by not raising the issue in his initial brief."); United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) ("[O]ur well established rule is that issues
and contentions not timely raised in the briefs are deemed abandoned."); United States v. Curtis,
___ F.3d ___, 2004 WL 1774785 (11th Cir. Aug. 10, 2004) (order declining to permit a
supplemental brief raising a Blakely issue for the first time, following Nealy and Ford).
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maximum sentence provided in the United States Code, with that maximum being
the only constitutionally relevant "maximum sentence." Pineiro, 377 F.3d at 470.
After canvassing the relevant Supreme Court precedent – including Mistretta
v. United States, 488 U.S. 361, 396, 109 S. Ct. 647, 667 (1989); Edwards v. United
States, 523 U.S. 511, 513-15, 118 S. Ct. 1475, 1477-78 (1998), as well as United
States v. Cotton, 535 U.S. 625, 633 n.3, 122 S. Ct. 1781, 1786 n.3 (2002); Witte v.
United States, 515 U.S. 389, 399, 115 S. Ct. 2199, 2206 (1995); and United States
v. Watts, 519 U.S. 148, 156-57, 117 S. Ct. 633, 637-38 (1997) – and expressing
doubt that the Guidelines were intended to create hundreds of different “Apprendi”
offenses corresponding to the myriad permutations under the Guideline factors, the
Fifth Circuit concluded that Supreme Court precedent prior to Blakely supported
the view that the Guidelines were a tool for channeling sentencing discretion and
that Blakely did not compel departure from the long-embraced distinction drawn in
the precedent between the Guideline ranges and the maxima established in the
United States Code for the various offenses. Pineiro, 377 F.3d at 470-73. The very
recent en banc decision of the Sixth Circuit notes additional and persuasive reasons
supporting the view that Blakely does not give license to lower courts to depart
from this previous Supreme Court precedent. United States v. Koch, ___ F.3d ___,
2004 WL 1899930 (6th Cir. Aug. 26, 2004).
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We agree with the Fifth Circuit in Pineiro and the Sixth Circuit in Koch that
Blakely does not compel a departure from previous Supreme Court precedent and
the precedent of our own circuit culminating in United States v. Sanchez, 269 F.3d
1250 (11th Cir. 2001). We add to the discussion already extant in the opinions of
the Fifth and Sixth Circuits only the following comments about Edwards. As we
discussed in United States v. Duncan, ___ F.3d ___, 2004 WL 1838020 (11th Cir.
Aug. 18, 2004), the petitioners/defendants in Edwards challenged the district
court's finding at their sentencing hearing that the drug conspiracy involved both
cocaine and crack; they challenged the judge’s authority to so find, because the
jury had returned only a general verdict, and the district court had instructed the
jury that the government needed to prove the conspiracy involved cocaine or crack.
Edwards, 523 U.S. at 513, 118 S. Ct. at 1476-77. The Supreme Court quickly
dismissed the argument that the district court was not authorized to make this
determination under the Guidelines. Id. at 513-14, 118 S. Ct. at 1477. The
Supreme Court then dismissed the petitioners' claims under the statute and the
Constitution, including a Sixth Amendment challenge. See id. at 514-15, 118 S. Ct.
at 1477-78; Brief for Petitioners at 30-39, Edwards v. United States, 523 U.S. 511,
118 S. Ct. 1475 (1998) (No. 96-8732). As part of that discussion the Supreme
Court stated:
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Of course, petitioners' statutory and constitutional claims would
make a difference if it were possible to argue, say, that the
sentences imposed exceeded the maximum that the statutes permit
for a cocaine-only conspiracy. That is because a maximum
sentence set by statute trumps a higher sentence set forth in the
Guidelines. USSG § 5G1.1. But, as the Government points out,
the sentences imposed here were within the statutory limits applicable
to a cocaine-only conspiracy, given the quantities of that drug
attributed to each petitioner.
Edwards, 523 U.S. at 515, 118 S. Ct. at 1477-78.
It is clear from the above language that the Supreme Court in Edwards
viewed the maximum listed in the United States Code as the relevant maximum for
Sixth Amendment purposes instead of the range listed in the Federal Sentencing
Guidelines. Not only is the language of the opinion itself clear, it is also true that if
the Supreme Court had been focusing on the Guidelines to provide the relevant
maximum, some of the Edwards petitioners' sentences (involving cocaine and
crack) would have exceeded the range under the Guidelines for a cocaine-only
conspiracy. See Brief for Petitioners at 4; Edwards v. United States, 523 U.S. 511,
118 S. Ct. 1475 (1998) (No. 96-8732) (listing for each petitioner the district judge's
findings with respect to drug type and quantity, the base offense level, the total
offense level, the Guidelines range, and the sentence imposed); Brief for the
United States at 5-6, Edwards v. United States, 523 U.S. 511, 118 S. Ct. 1475
(1998) (No. 96-8732) (listing for each petitioner the district judge's findings with
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respect to drug type and quantity); United States Sentencing Commission,
Guidelines Manual, § 2D1.1(c) (Nov. 1994).
We are aware that Edwards was decided prior to Apprendi; however, that
decision seems to approve Edwards, not question it. In Apprendi the Supreme
Court indicated in a footnote that the Guidelines were not before the Court and that
Apprendi therefore expressed no view on the Guidelines other than what the Court
had already held. The Supreme Court then cited Edwards and included a
parenthetical quoting the following language from Edwards:
Of course, petitioners' statutory and constitutional claims would
make a difference if it were possible to argue, say, that the
sentences imposed exceeded the maximum that the statutes permit
for a cocaine-only conspiracy. That is because a maximum
sentence set by statute trumps a higher sentence set forth in the
Guidelines.
Apprendi, 530 U.S. at 497 n.21, 120 S. Ct. at 2366 n.21.
Although it is true that there was no argument in Edwards to the effect that
the maxima set out in the various Guidelines provisions constituted the relevant
maximum for Sixth Amendment purposes, nevertheless, the Supreme Court did
reject a Sixth Amendment challenge to the judicial fact finding there with respect
to a sentence below the statutory maximum set out in the United States Code. In
light of Edwards and our own precedent in Sanchez, the additional cases and
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reasoning discussed by the Fifth Circuit in Pineiro and the Sixth Circuit in Koch, as
well as the Supreme Court's express avoidance of this issue with respect to the
Guidelines in the Blakely opinion itself, we decline to conclude that Blakely
compels an alteration of the established view of the Guidelines as a tool for
channeling the sentencing court's discretion within a crime's minimum and
maximum sentence provided in the United States Code, with that maximum being
the only constitutionally relevant maximum sentence. Therefore, the district court
did not err in imposing the four-level enhancement pursuant to USSG §
2K2.1(b)(5). We hold that district courts should continue to sentence pursuant to
the Guidelines until such time as the Supreme Court rules on this issue.2 In so
holding, we join the Second, Fourth, Fifth, and Sixth Circuits. See United States v.
Mincey, ___ F.3d ___, 2004 WL 1794717 (2d Cir. Aug. 12, 2004); United States v.
Hammoud, 378 F.3d 426 (4th Cir. Aug. 2, 2004); Pineiro, 377 F.3d 464; Koch, ___
F.3d ___, 2004 WL 1899930.
We acknowledge that two circuits have held that Blakely does apply to the
Guidelines, and that it is very difficult to predict whether the Supreme Court will
apply Blakely to the Guidelines, and, if it does, whether it will hold that the
2
The Supreme Court has scheduled oral argument on this issue for October 4,
2004. See United States v. Booker, ___ S. Ct. ___, 2004 WL 1713654 (U.S. Aug. 2, 2004);
United States v. Fanfan, ___ S. Ct. ___, 2004 WL 1713655 (U.S. Aug. 2, 2004).
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Guidelines fall in their entirety or only in part. In light of this instability, we
recognize that district courts might deem it wise and appropriate to take protective
steps in case the Guidelines are later found unconstitutional in whole or in part.
However, we are reluctant to provide specific advice with respect to what
protective steps, if any, might be appropriate to reduce confusion and protect
against duplicative judicial efforts should the Supreme Court so rule. We realize
that such appropriate and feasible steps might vary with each individual case.
For the foregoing reasons, Reese’s conviction and sentence are
AFFIRMED.
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