United States v. Love

289 F. App'x 889
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 12, 2008
Docket06-1581
StatusUnpublished
Cited by6 cases

This text of 289 F. App'x 889 (United States v. Love) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Love, 289 F. App'x 889 (6th Cir. 2008).

Opinions

COOK, Circuit Judge.

Herbert Love appeals his sentence for a fifteen-year-old drug-conspiracy conviction. We reject Love’s claim that the Sixth Amendment requires a jury rather than a judge to determine the applicable drug quantity. We remand for resentencing, however, because the district court neglected to first calculate Love’s applicable Guidelines range and statutory maximum before imposing sentence.

I.

Love participated in a cocaine-trafficking conspiracy that geographically spanned Colombia, Florida, and Michigan. In 1993 the government indicted him and twenty-three codefendants for conspiracy to distribute more than five kilograms of cocaine. See 21 U.S.C. § 841(b)(1)(A); id. § 846. Six days into his eight-day jury trial, Love jumped bond and fled. The jury entered a guilty verdict in his absence, and although the United States Probation Office prepared a presentence report (“PSR”) at the time, the district court did not sentence Love until he resurfaced in California more than ten years after the trial. At the long-delayed sentencing, the [891]*891Government urged that Love — in keeping with an updated PSR — be held responsible for between 150 and 500 kilograms of cocaine. The court, after hearing Love’s objection to the quantity, determined that he was responsible for a lesser amount— between 50 and 150 kilograms — and imposed a 240-month sentence.

Love now appeals, challenging the propriety of the judge rather than the jury determining the drug quantity for which he was sentenced. He also presses his counsel’s allegedly ineffective assistance in failing to raise this error below. We reject these two claims because our precedent permits district courts to determine applicable drug quantities that, as here, do not affect a defendant’s maximum sentence.

Love’s appeal does succeed, however, on one issue. We agree with Love that, in sentencing him, the district court neglected to first calculate the proper Guidelines range within the relevant statutory framework. We accordingly vacate Love’s sentence and remand for resentencing.

II.

Love contends that the Sixth Amendment, as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), forbids sentencing courts from finding facts that increase a defendant’s sentence for a drug offense unless a jury has designated a drug quantity by special verdict. Love infers from Apprendi that the jury’s determination of guilt for an unspecified quantity of cocaine permits sentencing for only the minimum amount punishable under the Guidelines— less than twenty-five grams.

We review Love’s Apprendi challenge for plain error because he failed to object to the constitutionality of the sentencing court’s factfinding. See Fed.R.Crim.P. 52(b); United States v. Highgate, 521 F.3d 590, 595 (6th Cir.2008) (holding that forfeited claims can only be corrected if a defendant demonstrates plain error). And although Love attempts to avoid plain-error review by categorizing judicial factfinding at sentencing as structural error, our cases foreclose that construct. See, e.g., Campbell v. United States, 364 F.3d 727, 737 (6th Cir.2004) (“Apprendi errors are considered to be trial-type errors.”); U.S. v. Stewart, 306 F.3d 295, 319 (6th Cir.2002) (omitting a drug quantity from an indictment and jury instructions is a trial error, not a structural error).

We find no Sixth Amendment error here, plain or otherwise. Love’s Apprendi argument ignores Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), which held that juries need only determine the “outer limits” of a sentence, see id. at 567, 122 S.Ct. 2406, leaving the court free to make factual determinations that increase the sentence within the jury-authorized range. Id. Love’s 240-month sentence does not exceed the maximum statutory penalty applicable to his conviction for an indefinite quantity of cocaine.1 See id. § 841(b)(1)(C) (“In the [892]*892case of a controlled substance in schedule I or II ... such person shall be sentenced to a term of imprisonment of not more than 20 years.”); id. § 812, Schedule 11(a)(4) (treating cocaine as a Schedule II controlled substance).

And Love is wrong to believe that United States v. Booker, 543 U.S. 220,125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which extended Apprendi to federal sentencing, somehow overruled Hams; our decisions confirm that Harris remains good law. See United States v. Thompson, 515 F.3d 556, 565 (6th Cir.2008) (collecting many citations showing Harris’s continuing viability); see also United States v. Sexton, 512 F.3d 326, 330 (6th Cir.2008) (“Since defendants were sentenced under an advisory Guidelines scheme, the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings.”).

Love also argues that his sentencing counsel rendered ineffective assistance by failing to object to the district court’s fact-finding and by conceding his responsibility for more than twenty-five grams of cocaine. Faced with fresh law and a stale record, we could leave this claim for collateral review under 28 U.S.C. § 2255, as is our practice on direct review when the record is inadequate to assess the merits of the defendant’s allegations. See United States v. Franklin, 415 F.3d 537, 555 (6th Cir.2005). In this case, however, further factual development is unnecessary to assess Love’s claim because Love had no viable Apprendi challenges for counsel to lodge.

Nor do we fault counsel’s decision to concede Love’s responsibility for more than twenty-five grams of cocaine. Love’s counsel persuaded the district court to deviate from the PSR’s recommended quantity finding — reflecting some demonstrable success. Had counsel been unwilling to concede — when the trial evidence so clearly pointed to much greater responsibility— Love might not have received that beneficial deviation. We find that counsel’s failure to raise untenable constitutional and evidentiary disputes did not prejudice Love and therefore does not support his claim of ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

III.

A. Review of Sentencing Challenges

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