United States v. MacKinnon

United States Court of Appeals
For the First Circuit

No. 03-2219

UNITED STATES,

Appellee,

v.

DAVID MACKINNON, A/K/A OVID,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Robert A. O'Meara for appellant.
John A. Wortmann, Jr., Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.

March 16, 2005
 STAHL, Senior Circuit Judge. Appellant David "Ovid"

MacKinnon was sentenced before the Supreme Court's decision in

United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), under

a mandatory Guidelines system, as a career offender to 262 months

imprisonment after pleading guilty to one count of drug

trafficking. His initial request to this court was for a review of

the district court's denial of his motion for downward departure,

claiming, inter alia, that his physical, mental, and familial

circumstances, as well as the fact that his criminal history

consists of mostly minor street crimes, took him out of the

"heartland" of typical cases with the same sentencing range. He

also claimed that his sentence violates the Cruel and Unusual

Punishment Clause of the Eighth Amendment. At the invitation of

this Court, MacKinnon has filed two supplemental briefs arguing

that he should be resentenced in light of Booker. We agree and

remand for resentencing.

I. BACKGROUND

Between July 1999 and December 2001, the Drug Enforcement

Agency ("DEA"), in conjunction with local, state, and federal

agencies, conducted an investigation of drug trafficking in and

around the Franklin Hill Housing Project in Dorchester,

Massachusetts. During the course of the investigation, on three

occasions, MacKinnon was observed selling crack cocaine.

On January 30, 2002, MacKinnon was charged with

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distributing five grams or more of cocaine base ("crack cocaine")

in violation of 21 U.S.C. § 841(a)(1), and Aiding and Abetting in

violation of 18 U.S.C. § 2. Subsequently, on April 2, 2002, the

government filed an information pursuant to 21 U.S.C. § 851,

informing MacKinnon that he faced enhanced penalties under 21

U.S.C. § 841(b)(1)(B), and establishing MacKinnon's predicate

felony convictions for purposes of enhanced sentencing under United

States Sentencing Guidelines ("U.S.S.G.") § 4B1.1.

On January 6, 2003, MacKinnon pleaded guilty to the one

count of drug trafficking, but reserved his right to dispute that

the amount of drugs involved in the offense of conviction was "five

grams or more."1

The probation department issued a Pre-Sentence Report

("PSR"), and, based upon the fact that MacKinnon had at least four

predicate felony convictions of either a crime of violence or an

applicable controlled substance offense, it concluded that

MacKinnon was a career offender pursuant to U.S.S.G. § 4B1.1.

MacKinnon's resulting base offense level as calculated in the PSR

was 37, and his Criminal History Category ("CHC") was VI. The PSR

awarded MacKinnon a three-level downward adjustment for acceptance

of responsibility, resulting in an adjusted offense level of 34.

1
MacKinnon claimed below that the government was unable to
prove that the weight of the drugs seized in the offense of
conviction was five grams or more because there were less than five
grams after testing.

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Thus, MacKinnon's Guideline Sentencing Range was 262-324 months'

imprisonment.

MacKinnon moved for downward departure on numerous

grounds, and the government opposed MacKinnon's request.

At the sentencing hearing, the district court criticized

the government's decision to file an § 851 information in

MacKinnon's case. Just prior to imposing the sentence, the

district court stated:

I do not believe that the law allows me to depart
in this case. . . . There are simply no bases under
the law, as I understand it, that allow a
departure. It is an obscene sentence that has to
be imposed. It is unwarranted by the conduct,
granted that Mr. MacKinnon has a hugely long
record, but 188 months, which [is what] the
sentence would have been without the [§] 851
notice, was more than adequate for this then forty-
five-year-old man to serve, he would have been
sixty or so when he got out, but I have no choice.

The court further stated: "I have worked hard on the memorandum and

tried to figure out some way under the law in which the sentence

could be reduced. I can't do it. And although I totally disagree

with our government's policies at this stage concerning sentencing,

I am bound to obey my oath and to do this according to principle,

knowing all the time that this is an unjust, excessive and obscene

sentence." The court then concluded by stating "I have no power to

grant you leniency. I'm without authority to do other than as the

statute prescribes, having in mind the charging decisions that were

made and the 851 notice." The court then sentenced MacKinnon to

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the minimum permitted under the mandatory Guidelines scheme, 262

months' incarceration followed by eight years of supervised

release.

Finding that remand is warranted in light of Booker, we

remand for resentencing, and thus we do not address MacKinnon's

claims of sentencing error under our pre-Booker precedent or

violation of the Eighth Amendment's prohibition against cruel and

unusual punishment.

II. DISCUSSION

In United States v. Booker, 543 U.S. __, 125 S. Ct. 738

(2005), decided after we heard argument in MacKinnon's case, the

Supreme Court excised the provision of the Sentencing Reform Act of

1984, Pub. L. 98-473, Title II, § 211-238, 98 Stat. 1987 (1984),

that made the Guidelines mandatory in federal court sentencing, 18

U.S.C. § 3353(b)(1). See 125 S. Ct. at 764-68.2 In addition, the

Court stated that the principles announced in Booker apply to all

cases pending on direct review. Id. at 769. Courts of appeals

were then directed, when evaluating claims under Booker, to "apply

ordinary prudential doctrines, determining, for example, whether

2
The Court also excised the provision of the Sentencing
Reform Act that gave the courts of appeals de novo review over
certain aspects of sentencing, 18 U.S.C. § 3742(3). See Booker,
125 S Ct. at 764-68. The two excised portions of the Act were
severed, leaving the remainder of the Sentencing Reform Act intact.
See United States v. Antonakopoulos, No. 03-1384, 2005 WL 407365,
at *12-*13 (1st Cir. Feb. 22, 2005).

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the issue was raised below and whether it fails the 'plain error'

test." Id.

In United States v. Antonakopoulos, this court held that

the error under Booker is that "the defendant's Guidelines sentence

was imposed under a mandatory system." Antonakopoulos, 2005 WL

407365, *10. And, we held there that the argument that a Booker

error occurred is preserved if the defendant below argued error

under Apprendi v. New Jersey, 520 U.S. 466 (2000), or Blakely v.

Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), or that the

Guidelines were unconstitutional. Antonakopoulos, 2005 WL 407365,

at *13. Here, MacKinnon made no such arguments below, and thus his

claim under Booker is unpreserved.

In Antonakopoulos, we also set forth the applicable

framework for review of unpreserved Booker claims. Utilizing the

four-prong test set forth in United States v. Olano, 507 U.S. 725

(1993), there must be (1) an error (2) that is plain, (3) that

affects substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

See Antonakopoulos, 2005 WL 407365, at *14-*15. We went on to

describe a situation similar to that presented by MacKinnon as one

presenting a strong argument for remand:

[H]istory shows that the mandatory nature of the
Guidelines has produced particular results which led
trial judges to express that the sentences imposed were
unjust, grossly unfair, or disproportionate to the crime
committed, and the judges would otherwise have sentenced
differently. Where the district judge has said as much

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 about a Guidelines sentence, that is a powerful argument
for remand. If the resulting sentence after remand is
itself unreasonable, the government can appeal.

Id. at *24-*25 (internal citations omitted).

Here, we believe that this record, in light of the

judge's comments and the numerous grounds presented by MacKinnon

for departure that could not be considered under a mandatory

Guidelines system, presents a case for remand.

Accordingly, MacKinnon's sentence is VACATED, and the

case is REMANDED for resentencing.

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