[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 25, 2005
No. 04-12602 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80098-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE SHELTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 25, 2005)
Before CARNES, HULL and MARCUS, Circuit Judges.
HULL, Circuit Judge:
Terrance Shelton appeals his 190-month sentence, imposed after he pled
guilty to drug and firearms offenses.
In his initial brief on appeal, Shelton timely raised the numerous issues we
address in this case based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000); Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), and
now United States v. Booker, – U.S. –, 125 S. Ct. 738 (2005), which we
collectively refer to herein as the “Booker issues.”
After review, we conclude there were no Sixth Amendment violations in
Shelton’s sentence under Booker. However, the district court erred under Booker
in sentencing Shelton under a mandatory Guidelines regime, and Shelton has
established a reasonable probability that the district court would have imposed a
lesser sentence but for the mandatory Guidelines regime. Thus, for the reasons
outlined in this opinion, we vacate Shelton’s sentence and remand for resentencing
under Booker.
I. BACKGROUND
A. Shelton’s Guilty Plea
On July 17, 2003, Shelton was indicted for: (1) knowingly and intentionally
distributing “at least five (5) grams” of crack cocaine, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B), and (b)(1)(C), and 18 U.S.C. § 2 (counts 1, 2, and 4); (2)
knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C.
2
§§ 841(a)(1), (b)(1)(B), and (b)(1)(C), and 18 U.S.C. § 2 (counts 5 and 6); (3)
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (counts 3, 7, and 10); (4) knowingly carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2
(count 9); and (5) knowingly possessing with intent to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).1
In a written plea agreement, Shelton pled guilty to the drug charge in count 4
and the firearms charge in count 9. During the plea colloquy under Rule 11, the
district court explained that the mandatory minimum for the drug charge in count 4
was 10 years’ imprisonment (120 months) and the maximum was life
imprisonment. Shelton’s three prior drug convictions increased Shelton’s
statutory, mandatory minimum sentence from five to ten years’ imprisonment and
his statutory maximum penalty from forty years’ to life imprisonment. 21 U.S.C. §
841(b)(1)(B).2 During the plea colloquy, the district court further explained that as
to the firearm charge in count 9, Shelton would face a mandatory minimum
sentence of 5 years’ imprisonment (60 months) to run consecutively to his drug
1
Shelton’s co-defendant, Jermaine Hunter, also was indicted on the above-listed counts,
except count 12. Further, Hunter was indicted individually on several counts that we do not
discuss here.
2
The government gave Shelton written notice listing his three prior drug convictions and
explaining the increased penalty. See 21 U.S.C. § 851.
3
sentence for count 4.
Also during the plea colloquy, the government offered facts showing that
Shelton and codefendant Hunter sold drugs and two firearms to a confidential
informant (“CI”) under surveillance on June 23, 2003. According to the
government’s recitation of the facts, Shelton’s drug transaction with the CI on that
one day involved 16.7 grams of crack and 15 grams of cocaine powder. During the
plea colloquy, Shelton agreed to the government’s recitation of the facts. The
district court then accepted Shelton’s guilty plea as to counts 4 and 9, and the
remaining counts in the indictment were dismissed on the government’s motion.
B. The Presentence Report
The Presentence Investigation Report (“PSI”) reported that Shelton had
participated not only in the above drug offense on June 23, 2003, but also in two
other drug transactions with the CI on June 18 and 20, 2003, respectively. The PSI
also reported that, on June 26, 2003, an additional amount of drugs were found in a
car abandoned by Shelton.
According to the PSI, Shelton’s total drug quantity for sentencing purposes
was 47 grams of crack cocaine and 87.2 grams of cocaine powder, which
represented the total amount of drugs in these four events: (1) the offense conduct
on June 23, 2003 that involved 16.7 grams of crack and 15 grams of cocaine
4
powder; (2) the drug transaction on June 18, 2003 that involved 17.1 grams of
crack transferred to a confidential informant; (3) the drug transaction on June 20,
2003 that involved 13.2 grams of crack transferred to a confidential informant; and
(4) the 72.2 grams of cocaine powder recovered from a car abandoned by Shelton
on June 26, 2003.
The PSI noted a marijuana equivalency of 957 kilograms for the total
quantity of 47 grams of crack and 87.2 grams of cocaine powder. The marijuana
equivalency corresponded to a base offense level of 30. See U.S.S.G. §
2D1.1(c)(5) (providing for base offense level of 30 when drug quantity is at least
700 but less than 1,000 kilograms of marijuana). Shelton filed no objection to the
factual statements in the PSI that detailed his offense conduct and the above
relevant conduct and drug quantities.
Shelton’s PSI further recommended a two-level reduction for acceptance of
responsibility and a one-level reduction for assistance to the government, resulting
in an adjusted offense level of 27. Based on his prior convictions, the PSI noted
that Shelton had 13 criminal history points, which corresponded to a criminal
history category of VI. According to the PSI, the sentencing range for offense
level 27 and criminal history category VI was 130-162 months’ imprisonment for
count 4, followed by a mandatory term of 60 months’ imprisonment for count 9, to
5
run consecutively with the term for count 4. Shelton did not object to any of the
PSI’s calculations.
C. Sentencing Hearing
At the sentencing hearing, Shelton again raised no objections to the factual
statements in the PSI. When the district court inquired about the PSI, Shelton’s
counsel stated that he had reviewed the report with Shelton and that they did not
dispute the factual matters. The district court then sentenced him to 130 months’
imprisonment for count 4 and 60 months’ imprisonment for count 9, to run
consecutively.3
In sentencing Shelton, the district court expressed dissatisfaction with
Shelton’s sentence, but indicated the Sentencing Guidelines and the relevant
statutes dictated the result. For example, the district court commented that
Shelton’s sentence was “very, very severe” due to Shelton’s criminal history points
and the mandatory, consecutive five-year sentence on the § 924(c) firearms count.
The district court noted that “unfortunately” the Guidelines criminal-history
calculation takes into account each of the defendant’s past charges and does not
take into account the fact that the sentences imposed on those charges were short as
a result of such factors as the youth of the defendant or amount of drugs involved.
3
The district court also sentenced Shelton to 8 years’ supervised release for count 4 and 5
years’ supervised release for count 9, to run concurrently.
6
The district court later expressed its disapproval of the severity of the sentence
again, stating that Congress has taken a “very, very hard stance when it comes to
guns and drugs.” Most significantly for Shelton, the district court indicated that
the most lenient sentence it could impose, a sentence at the low end of the
Guidelines range, was “more than [was] appropriate in this situation.”
II. STANDARD OF REVIEW
While Shelton’s initial brief on appeal timely raised various Booker issues in
this case, he did not raise these issues in the district court. Thus, our review is only
for plain error. United States v. Rodriguez, – F.3d –, 2005 WL 272952, at *6 (11th
Cir. Feb. 4, 2005). “An appellate court may not correct an error the defendant
failed to raise in the district court unless there is: ‘(1) error, (2) that is plain, and (3)
that affects substantial rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625,
631, 122 S. Ct. 1781, 1785 (2002)). “‘If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Id. (quoting Cotton, 535 U.S. at 631, 122 S. Ct. at 1785).
III. DISCUSSION
As noted above, on appeal, Shelton raises several Booker issues, which we
address here.
7
A. Sentencing Enhancements
Shelton first argues that the district court erred when it enhanced his
sentence based on a judicial fact-finding of drug quantity and based on his prior
convictions. We readily dispense with that issue. The Supreme Court consistently
has rejected Shelton’s argument that a district court errs when it considers prior
convictions in sentencing a defendant under the Guidelines. In Almendarez-Torres
v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), the Supreme Court “held
that the government need not allege in its indictment and need not prove beyond a
reasonable doubt that a defendant had prior convictions for a district court to use
those convictions for purposes of enhancing a sentence.” United States v.
Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004) (citation omitted). This
conclusion was left undisturbed by Apprendi, Blakely, and Booker.
Moreover, in Booker, the Supreme Court reaffirmed its holding in Apprendi.
See Booker, 125 S. Ct. at 756 (opinion of Stevens, J.) (reaffirming that “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt” (emphasis added)). Thus, a district court does not err by relying on prior
8
convictions to enhance a defendant’s sentence.4
Nor did the district court err in sentencing Shelton based on a drug quantity
greater than the quantity alleged in the indictment. We recognize that count 4 of
his indictment, to which Shelton pled guilty, charged only “at least five (5) grams
of a mixture and substance containing a detectable amount of cocaine base,
commonly known as crack cocaine,” which corresponds to a base offense level of
26. It is also clear that the district court started with a base offense level of 30
based on its finding that Shelton’s offense and relevant conduct together involved a
total of 47 grams of crack and 87.2 grams of cocaine powder, which was converted
to a marijuana equivalent of 957 kilograms.
Nonetheless, the first prong of the plain-error test is not satisfied in this case
because Shelton’s sentence was not enhanced as a result of judicial findings as to
drug quantity that went beyond the facts admitted by Shelton. Shelton admitted to
part of this drug quantity in his plea colloquy and to the rest of this drug quantity at
sentencing. Not only did Shelton raise no objections to the PSI’s factual
4
Other circuits post-Booker also have recognized that enhancements for prior convictions
are for the judge, not the jury, to determine. See, e.g., United States v. Barnett, – F.3d.– , 2005
WL 357015, at *8 (6th Cir. Feb. 16, 2005) (“[T]here is no language in Booker suggesting that
the Supreme Court, as part of its remedial scheme adopted in that case, intended to alter the
exception to Apprendi allowing district courts to consider the fact and nature of prior
convictions, without submitting those issues to the jury.”); United States v. Vieth, – F.3d. – ,
2005 WL 284724, at *4 (8th Cir. Feb. 8, 2005) (“As to the enhancement for a prior conviction,
the Supreme Court has consistently said that the fact of a prior conviction is for the court to
determine, not the jury.”).
9
statements about his relevant conduct, but Shelton’s counsel also stated, “[W]e
don’t dispute the factual matters” in the PSI. Thus, Shelton has admitted the facts
in the PSI. See United States v. Walters, 269 F.3d 1207, 1213 (10th Cir. 2001)
(“Walters did not challenge the accuracy of the relevant facts contained in the PSR.
Therefore, under the law of this circuit, they are deemed admitted as true.” (citation
omitted)); United States v. Joshua, 40 F.3d 948, 952 (8th Cir. 1994) (“Joshua did
not dispute the PSR’s rendition of his criminal history, and the facts therein
therefore stand as admitted.” (citation omitted)). Because Shelton admitted to the
facts that enhanced his sentence, there is no Sixth Amendment violation under
Booker in this case. See United States v. Frye, – F.3d – , 2005 WL 315563, at *4
(11th Cir. Feb. 10, 2005).
B. “Mandatory” Nature of the Guidelines Error
In this case, Shelton was sentenced under the pre-Booker mandatory
Sentencing Guidelines. Thus, we must determine whether under Booker there is
error in Shelton’s sentence because the district court considered and applied the
Guidelines as binding.
1. Error
In Booker, the Supreme Court excised the two parts of the Sentencing
Reform Act that rendered the mandatory Guidelines system unconstitutional: the
10
part in 18 U.S.C. § 3553(b)(1) making the Guidelines result binding on the
sentencing court; and the part in § 3742(e) requiring de novo review of sentences
on appeal. Booker, 125 S. Ct. at 764. In doing so, the Supreme Court stated that
“[w]ith these two sections excised (and statutory cross-references to the two
sections consequently invalidated), the remainder of the Act satisfies the Court’s
constitutional requirements.” Id. The Supreme Court in Booker further instructed
that its remedial holding applies to cases on direct review. Id. at 769 (“[W]e must
apply today’s holdings – both the Sixth Amendment holding and our remedial
interpretation of the Sentencing Act – to all cases on direct review.”).5
Although the district court followed the correct sentencing procedure when
it sentenced Shelton, the Supreme Court has now excised the mandatory nature of
the Guidelines in Booker. Thus, we conclude that it was Booker error for the
district court to sentence Shelton under a mandatory Guidelines scheme, even in
the absence of a Sixth Amendment enhancement violation.6
5
We emphasize, however, that Shelton timely raised his Booker issues on direct appeal,
which distinguishes his case from those in which the defendant defaulted, waived, or abandoned
at the appellate stage the Apprendi, Blakely, or Booker issues. See United States v. Levy, 379
F.3d 1241, 1242 (11th Cir. 2004) (declining to consider issue raised for the first time in petition
for rehearing), reh’g en banc denied, 391 F.3d 1327 (11th Cir. 2004); United States v. Ardley,
242 F.3d 989, 990 (11th Cir. 2001) (stating that “we apply our well-established rule that issues
and contentions not timely raised in the briefs are deemed abandoned” (citation omitted)).
6
We note that this conclusion is consistent with those of at least two other circuits that
have considered this issue. See United States v. Barnett, – F.3d –, 2005 WL 357015, at *8 (6th
Cir. Feb. 16, 2005) (“[W]e hold that it was plain error for Barnett to be sentenced under a
11
In reaching this conclusion, we note that Booker error, as succinctly stated in
Rodriguez, is as follows:
The constitutional error is the use of extra-verdict enhancements to
reach a guidelines result that is binding on the sentencing judge; the
error is the mandatory nature of the guidelines once the guidelines
range has been determined.
Rodriguez, 2005 WL 272952, at *9. As a result of Booker’s remedial holding,
Booker error exists when the district court misapplies the Guidelines by
considering them as binding as opposed to advisory.
2. Plain
The next issue is whether the error was “plain.” In this case, “[a]lthough the
error was not ‘plain’ at the time of sentencing, ‘where the law at the time of trial
was settled and clearly contrary to the law at the time of appeal – it is enough that
the error be ‘plain’ at the time of appellate consideration.’” Rodriguez, 2005 WL
272952, at *7 (quoting Johnson v. United States, 520 U.S. 461, 468, 117 S. Ct.
1544, 549 (1997)). Booker made plain the district court’s error in sentencing
Shelton under a mandatory Guidelines scheme that is now advisory. See Barnett,
2005 WL 357015, at *8. Thus, we move on to the third prong of plain error, which
is exceedingly difficult for defendants to overcome. See, e.g., Rodriguez, 2005
mandatory Guidelines regime that has now become advisory.”); United States v. Labastida-
Segura, 396 F.3d 1140, 2005 WL 273315, at *2 (10th Cir. Feb. 4, 2005) (concluding it was error
to sentence the defendant under a mandatory Guidelines system).
12
WL 272952, at *6.7
3. Effect on Shelton’s substantial rights
Under the third prong of plain-error review, Shelton is required to
demonstrate that the plain error “affects [his] substantial rights.” United States v.
Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785 (2002) (quotation marks,
citation, and brackets omitted). In this third prong, “[i]t is the defendant rather
than the [g]overnment who bears the burden of persuasion with respect to
prejudice.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778
(1993). “The Supreme Court has instructed us that plain error review should be
exercised ‘sparingly.’” Rodriguez, 2005 WL 272952, at *6 (citation omitted).
Further, “the plain error test is difficult to meet,” and in particular, the “burden of
showing prejudice to meet the third-prong requirement is anything but easy.” Id. at
*6-7 (quotation marks and citation omitted).
Further, the defendant’s burden with respect to prejudice is to show that the
error “actually did make a difference.” Rodriguez, 2005 WL 272952, at *8. In
7
We disagree with the Sixth Circuit’s view in Barnett, 2005 WL 357015, at *13-15
(Gwin, J., concurring), that § 3742(f)(1), which provides for and requires a remand upon an
incorrect application of the Guidelines, would apply in this instance. 18 U.S.C. § 3742(f)(1).
Rather, Booker error is subject to both harmless-error and plain-error review and for that reason
does not always require a remand, and often will not. Booker, 125 S. Ct. at 769 (cases on direct
review should be reviewed using “ordinary prudential doctrines” and applying the “‘plain-error’
test” and not every appeal will “lead to a new sentencing hearing”). Thus, Shelton is required to
establish all four prongs of the plain-error test.
13
other words, in post-Booker sentencing cases, “in applying the third prong, we ask
whether there is a reasonable probability of a different result if the guidelines had
been applied in an advisory instead of binding fashion by the sentencing judge in
this case.” Id. at *9.8 A reasonable probability of a different result means a
probability “sufficient to undermine confidence in the outcome.” Id. at *7
(quotation marks and citations omitted).
A defendant sentenced pre-Booker faces difficulty in establishing that a
mandatory, as opposed to an advisory, Guidelines scheme actually affected the
outcome of the proceedings. To establish the third prong takes something more
than showing the district court sentenced within the Guidelines range and felt
bound to do so, especially given that the Guidelines range remains an important
8
We also disagree with the Sixth Circuit’s conclusion of presumed prejudice in a similar
case. See Barnett, 2005 WL 357015, at *10-12. The Sixth Circuit adopted the presumed-
prejudice approach because it found that “it would be exceedingly difficult for a defendant, such
as Barnett, to show that his sentence would have been different if the district court had sentenced
him under the advisory, rather than the mandatory, Guidelines framework.” Id. at *10. As
discussed at length in Rodriguez, clear precedent of the Supreme Court and this Court
establishes that a defendant has the burden to show actual prejudice in plain-error review.
Rodriguez, 2005 WL 272952, at *7-10. While we agree with the Sixth Circuit’s observation that
it will be difficult for a defendant to establish the third prong in Booker-error cases, that is no
reason to dispense with it as that Court has done. See Barnett, 2005 WL 357015, at *18 (Boggs,
C.J., dissenting) (“It is well settled that the defendant must show prejudice before a reviewing
court may reverse. . . . Indeed, if the Supreme Court believes that we should presume prejudice
when it would be difficult for the defendant to establish it, it is hard to explain why the Court has
passed up so many opportunities to articulate such a doctrine.” (citation omitted)). Besides,
some defendants, including Shelton, can satisfy the third prong.
14
factor in sentencing.9 But Shelton has carried that heavy burden in the instant case.
Here, the district court during sentencing expressed several times its view
that the sentence required by the Guidelines was too severe, and noted that
“unfortunately” Shelton’s criminal history category under the Guidelines was
based on his past charges rather than on the actual nature of the crimes as reflected
in the sentences imposed in those cases. The district court not only sentenced
Shelton to the lowest possible sentence it could under the Guidelines, 130 months,
but also stated that sentence was “more than appropriate” in this case. All of these
comments taken together convince us that there is a reasonable probability the
district court would have imposed a lesser sentence in Shelton’s case if it had not
felt bound by the Guidelines.10 In addition, and importantly too, Shelton has
established a reasonable probability that some sentence below the Guidelines range
9
After Booker, the Federal Sentencing Guidelines remain an essential consideration in the
imposition of federal sentences, albeit along with the factors in § 3553(a). A sentencing court
under Booker still must consider the Guidelines, and, such consideration necessarily requires the
sentencing court to calculate the Guidelines sentencing range in the same manner as before
Booker. Indeed, the factors the Sentencing Commission was required to use in developing the
Guidelines are a virtual mirror image of the factors sentencing courts are required to consider
under Booker and § 3553(a). The change wrought by Booker is the excising of the mandatory
nature of the Guidelines.
10
We emphasize that the district court was, and still is, bound by the statutory minimums.
For example, Shelton’s sentence can be no less than 120 months’ (10 years’) imprisonment for
the drug charge in count 4. The district court sentenced Shelton to 130 months’ imprisonment,
which is 10 months higher than the statutory minimum on count 4. The firearms sentence is not
in issue in this case because it carries a mandatory, five-year minimum, consecutive sentence to
follow the drug sentence.
15
would be permissible and reasonable in light of Booker and the § 3553(a) factors.11
Thus, we proceed to the fourth prong.
4. Fairness, integrity or public reputation of judicial proceedings
Finally, under the fourth prong of plain-error review, we consider whether
the “plain error” at sentencing “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Simpson, 228 F.3d 1294,
1300-01 (11th Cir. 2000) (quotation marks and citations omitted); United States v.
Chisholm, 73 F.3d 304, 307 (11th Cir. 1996). A plain error affecting substantial
rights does not, without more, satisfy the plain-error test, for otherwise the fourth
prong and the discretion afforded by the fourth prong would be illusory. We
conclude that the fourth prong is established here and that an exercise of our
discretion is warranted in this particular case.12
11
Although the district court’s comments convince us that on remand the district court
will sentence below the range indicated by the Guidelines, we do not know exactly what
sentence it will impose after consulting the § 3553(a) factors. Until we find out, we will not
attempt to decide whether a particular sentence below the Guidelines range might be reasonable
in this case. If there is an appeal of the actual post-remand sentence which raises that issue, we
can decide it then.
12
We also must mention the plain-error analysis in United States v. Curtis, 380 F.3d 1308
(11th Cir. 2004). The Curtis case was before the Court on the defendant’s motion to file a
supplemental brief on appeal. After briefing and oral argument, Curtis’s motion sought to raise,
for the first time on appeal, a claim that his sentencing enhancements were unconstitutional
under Blakely. The Curtis Court’s published opinion denied the defendant’s motion as untimely.
In a footnote, the Curtis Court made the alternative ruling that even if the Blakely issue
had been raised adequately on appeal, we would have been limited to plain-error review and that
the Blakely error in any event was not at all plain under the second prong of plain error review.
The Curtis Court did not address the third prong at all, but moved on to the fourth prong, stating:
16
The district court in this case indicated an express desire to impose a
sentence lesser than the low end of the Guidelines range of 130 months’
imprisonment, and the Supreme Court in Booker plainly indicated that the district
court now has the discretion to do so, provided the resulting sentence is reasonable
in light of the § 3553(a) factors. Under these circumstances, the defendant Shelton
has carried his burden to establish the fourth prong and has shown that the plain
error that affected his substantial rights also seriously affected the fairness,
integrity or public reputation of the judicial proceedings in his particular case.
Accordingly, we vacate Shelton’s sentence and remand for resentencing consistent
with Booker.
VACATED AND REMANDED.
With respect to the fourth prong, we discern no miscarriage of justice in the case, nor
do we believe this case presents a situation that seriously affects the fairness,
integrity or public reputation of judicial proceedings. Accordingly, as an alternative
basis for our decision, we conclude that Curtis has failed to demonstrate plain error.
Id. at 1311 n.2.
Shelton’s case is distinguishable from Curtis because (1) Shelton has established the third
prong of the plain-error test, that his sentence actually would have been different and shorter but
for the district court’s error, (2) our failure to notice the forfeited error would leave Shelton with
a sentence that the district court would not have given, and (3) in any event, the Blakely error in
the Sentencing Guidelines context contemplated by the Curtis panel was judicial versus jury
fact-finding of sentencing enhancements and is entirely different from the error we now know to
exist under Booker as to the Sentencing Guidelines. See Rodriguez, 2005 WL 272952, at *9
(“The constitutional error is the use of extra-verdict enhancements to reach a guidelines result
that is binding on the sentencing judge; the error is the mandatory nature of the guidelines once
the guideline range has been determined.”)
17