United States v. Jaja Zambrowski Davis, Morris Ramsey, a.k.a. "Fade"(amended 5/12/2003)

[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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