[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 03-15315 August 18, 2004 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 02-00020 CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO D. DUNCAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(August 18, 2004)
Before ANDERSON and BIRCH, Circuit Judges, and LAND*, District Judge.
ANDERSON, Circuit Judge:
On February 20, 2002, the appellant, Marco D. Duncan, and several other
* Honorable Clay D. Land, United States District Judge for the Middle District of Georgia, sitting by designation. codefendants were charged with conspiracy to distribute and possess with intent to
distribute five kilograms or more of cocaine and fifty grams or more of cocaine
base, pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 21 U.S.C. § 846. The
indictment also alleged a criminal forfeiture count.
Prior to trial, Duncan filed a motion to suppress all evidence obtained from
the search of his vehicle at the time of his arrest. The district court denied the
motion.
Duncan's trial commenced on July 21, 2003. The jury found Duncan guilty
as charged, and by a special verdict found that the conspiracy involved five
kilograms or more of cocaine. A bifurcated forfeiture proceeding was conducted,
and the jury returned a forfeiture verdict of $340,000 against the defendant. On
October 10, 2003, the district court sentenced Duncan to life imprisonment and
ordered forfeiture in the amount of $340,000. Duncan timely appealed.
Duncan raised various arguments with respect to his conviction, sentence,
and forfeiture. After oral argument and careful consideration, we reject without
need for further discussion the following arguments asserted by Duncan on appeal:
1) that the district court erred by denying his motion to suppress the evidence
obtained from the April 21, 2003 search; 2) that the district court erred by
enhancing his sentence two levels for the possession of a firearm; 3) that the
2 district court erred by enhancing his sentence four levels based upon his role in the
offense; and 4) that the forfeiture count of the indictment failed to set forth with
the specificity required by the Fifth Amendment Due Process Clause the property
that the Government claimed was obtained as a result of the alleged conspiracy.
Duncan's remaining argument on appeal is that the special verdict by the
jury, finding cocaine powder, precluded the district court at sentencing from
calculating Duncan's base offense level by finding that 12.24 of the kilograms of
cocaine powder had been converted into cocaine base, or crack. Had Duncan's
base offense level been calculated for cocaine powder instead of cocaine base, his
base offense level would have been 34 instead of 38 under the Federal Sentencing
Guidelines ("Guidelines"). However, the district court set the base offense level at
38 stating, "I certainly find from the evidence, by a preponderance at least, and
actually more than that, that Mr. Duncan knew and it was reasonably foreseeable
to him that it was being converted into crack cocaine, most of it converted, and
sold in that form."
In his initial brief on appeal, Duncan argued that the jury and not the district
court judge should have made the determination of the type and quantity involved
in the drug conspiracy. After the regular briefing in this case, the Supreme Court
decided Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). In Blakely,
3 the Supreme Court applied the rule set out in Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), 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. Because Duncan
raised in his initial brief a similar challenge to that raised by Blakely – namely that
the factual finding that the conspiracy involved cocaine base should have been
determined by the jury instead of the sentencing judge – Duncan raised this issue
in a timely manner on appeal, and we ordered supplemental briefing with respect
to Blakely.1
However, Duncan failed to raise this issue in the district court at any time,
either during the trial or at sentencing. Although Duncan did object below to the
1 In his initial brief, Duncan made the Apprendi-type argument only with respect to the drug type issue, and not with respect to the other two enhancements referenced in the any of the briefs, i.e., the firearm and role enhancements. Accordingly, he is not entitled to have this Court entertain the argument with respect to those other two enhancements. 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). Moreover, even in his supplemental brief Duncan focuses on the drug type finding, barely mentioning the other two enhancements, and even that mention is both conclusory and vague. We readily conclude that Duncan has abandoned any Blakely challenge except with respect to the drug type.
4 setting of the base offense level pursuant to a finding of cocaine base instead of
cocaine powder, Duncan's argument below was limited to a sufficiency of the
evidence argument that it was impossible to determine from the evidence what
quantity of the cocaine powder had been cooked into crack. That Duncan's
objection below was limited to the sufficiency of the evidence indicating cocaine
base and did not include any type of objection based upon the Sixth Amendment is
clear from his written objections to his Presentence Investigation Report ("PSI") as
well as the transcript from the sentencing hearing. Therefore, because Duncan
failed to raise a Sixth Amendment argument below, our review is limited to
determining whether setting the base offense level based upon the sentencing
judge's finding of cocaine base constitutes plain error in light of the Supreme
Court's holding in Blakely. See United States v. Candelario, 240 F.3d 1300, 1304,
1308 (11th Cir. 2001) (noting that where a defendant did not make an Apprendi-
based objection before the district court at sentencing, review is limited to plain
error review; and noting that a sufficiency of the evidence objection is not a
constitutional objection); United States v. Sanchez, 269 F.3d 1250, 1280 (11th Cir.
2001) (en banc) (applying plain error review where Apprendi claim raised for the
first time on appeal). The fact that Blakely was decided subsequent to the
judgment in the district court does not alter our use of the plain error standard.
5 See United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002) (applying plain
error to an Apprendi claim where Apprendi was decided while the appeal was
pending in the Fourth Circuit); Johnson v. United States, 520 U.S. 461, 117 S. Ct.
1544 (1997) (where the argument was first raised on appeal and was based upon a
case decided by the Supreme Court after the defendant's conviction but before her
appeal, the Court applied plain error review to the issue of whether the materiality
of a false statement was an element of an offense such that it had to be submitted
to a jury).
We have discretion to correct an error under the plain error standard where
(1) an error occurred, (2) the error was plain, (3) the error affected substantial
rights, and (4) the error seriously affects the fairness, integrity or public reputation
of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct.
1770, 1777-79 (1993).
In order to satisfy the second prong, the error must be “obvious” or “clear
under current law.” United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001).
With regards to this second prong, we cannot conclude that it is obvious from
Blakely that the case would apply to render unconstitutional judicial fact finding
leading to sentence enhancement under the Federal Sentencing Guidelines. The
Court in Blakely expressly states, "The Federal Guidelines are not before us, and
6 we express no opinion on them." Blakely, 124 S. Ct. at 2538 n.9. Further, as we
previously concluded in United States v. Curtis, ___ F.3d ___ , n.2, 2004 WL
1774785 (11th Cir. Aug. 10, 2004), there is considerable disagreement amongst
jurists and amongst the circuits on this issue. In Curtis, we illustrated this
disagreement by citing cases from the Seventh, Eighth2, and Ninth Circuits
holding that Blakely applies to sentences imposed under the Federal Sentencing
Guidelines and cases from the Fifth and Fourth Circuits holding that Blakely does
not apply to the Guidelines. Id. We also cited the Second Circuit's en banc
opinion in United States v. Penaranda, 375 F.3d 238 (2d Cir. July 12, 2004),
certifying the question of Blakely’s application to the Supreme Court. Id.3 Since
2 Since Curtis, the two panel opinions of the Eighth Circuit holding that Blakely applies to the Guidelines have been vacated and rehearing en banc has been granted. See United States v. Mooney, ___ F.3d ___, 2004 WL 1636960 (8th Cir. July 27, 2004), vacated for reh'g en banc (8th Cir. Aug. 6, 2004); United States v. Pirani, ___ F.3d. ___, 2004 WL 1748930 (8th Cir. Aug. 5, 2004), vacated for reh'g en banc (8th Cir. Aug. 16, 2004). 3 The portion of the footnote in Curtis addressing the second prong states in full:
With respect to the second prong, we cannot conclude that it is obvious from Blakely that it applies to the Federal Sentencing Guidelines; there is considerable disagreement amongst jurists and amongst the circuits: compare United States v. Booker, ___ F.3d ___, 2004 WL 1535858 (7th Cir. July 9, 2004) (2-1 decision) (holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines over a dissent by Judge Easterbrook espousing the opposing view), United States v. Ameline, ___ F.3d ___, 2004 WL 1635808 (9th Cir. July 21, 2004) (2-1 decision) (holding that Blakely applies to sentences imposed under the Federal
7 Curtis, two additional circuits have weighed in on this issue, both holding that
Blakely does not apply to the Guidelines. See United States v. Mincey, ___ F.3d
___, 2004 WL 1794717 (2d Cir. Aug. 12, 2004) (withholding mandate pending
Supreme Court’s decision in Booker and Fanfan) (holding that Blakely does not
apply to the Guidelines);4 United States v. Koch, No. 02-6278, (6th Cir. Aug. 13,
2004) (en banc) (unpublished order with majority and dissenting opinions to
follow) (holding that Blakely did not operate to invalidate the appellant's
sentence).
In this Circuit, we follow the rule that “where neither the Supreme Court nor
this Court has ever resolved an issue, and other circuits are split on it,” the error is
Sentencing Guidelines), and United States v. Mooney, ___ F.3d ___, 2004 WL 1636960 (8th Cir. July 27, 2004) (2-1 decision) (holding that Blakely rendered the Federal Sentencing Guidelines unconstitutional) with, United States v. Pineiro, ___ F.3d ___, 2004 WL 1543170 (5th Cir. July 12, 2004) (holding that Blakely does not apply to the Federal Sentencing Guidelines) and United States v. Hammoud, 2004 WL 1730309 (4th Cir. Aug 02, 2004) (en banc) (unpublished order with majority and dissenting opinions forthcoming) (holding that Blakely did not operate to invalidate the appellant’s sentence). See also United States v. Penaranda, ___ F.3d ___, 2004 WL 1551369 (2d Cir. July 12, 2004) (en banc) (certifying question of Blakely’s application to the Supreme Court).
Curtis, ___ F.3d ___, n.2. 4 Although this opinion was a panel opinion, it was circulated to all active judges on the Second Circuit before filing.
8 not “plain” or “obvious.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th
Cir. 2000) (citing United States v. Humphrey, 164 F.3d 585, 587 (11th Cir.
1999)); see also United States v. Gerrow, 232 F.3d 831, 835 (11th Cir. 2000)
(citing Aguillard and Humphrey for this same proposition). In the instant case,
neither the Supreme Court nor this Circuit has resolved the issue of whether
Blakely applies to the Federal Sentencing Guidelines, and as indicated above, the
circuits that have addressed the issue are not all in agreement. Indeed, the
majority of circuits that have addressed the issue reject Duncan's position that
Blakely applies to the Guidelines. Thus, Duncan cannot satisfy the second prong
of the plain error analysis.
We note that a panel of the Eighth Circuit, in the recent opinion in United
States v. Pirani, held that it is obvious that Blakely applies to the Guidelines. ___
F.3d ___, 2004 WL 1748930 (8th Cir. Aug. 5, 2004), vacated for reh'g en banc
(8th Cir. Aug. 16, 2004).5 The Pirani panel cites the various circuits that have held
5 We note that the panel opinion in Pirani has been vacated and rehearing en banc has been granted. Pirani, No. 03-2871 (8th Cir. Aug. 16, 2004) (order). Nevertheless, we discuss Pirani because it contains the most extensive discussion of any of the circuits finding plain error. The Seventh Circuit did not consider the application of the doctrine of plain error in United States v. Booker, 375 F.3d 508, 515 (7th Cir. July 9, 2004), cert. granted, ___ U.S. ___, ___ S. Ct. ___, 2004 WL 1713654 (Aug. 2, 2004), because the Government did not argue that Booker's Sixth Amendment challenge to the guidelines was forfeited by not being made in the district court. Further, the Ninth Circuit, in United States v. Ameline, 376 F.3d 967 (9th Cir. July 21,
9 that Blakely does apply to the guidelines, and then proceeds to discount the Fifth
Circuit’s opinion in United States v. Pineiro, ___ F.3d ___, 2004 WL 1543170
(5th Cir. July 12, 2004), that reached the opposite conclusion. The Eighth Circuit
panel agreed in principle with the Fifth Circuit’s conclusion that circuit courts
should not overrule prior Supreme Court precedent; however, the Pirani panel
discounted the Fifth Circuit's opinion because the Fifth Circuit relied primarily on
that rationale,6 because a majority of the courts to address the issue had held that
Blakely is applicable to the Sentencing Guidelines, and because of the “vigorous
defense of the jury’s role” in Blakely. For these reasons, the Pirani panel thought
it was appropriate to reconcile the apparent discrepancy between Blakely and the
Supreme Court precedent cited in Pineiro. Thus, the Eighth Circuit panel
discounted the Fifth Circuit’s opinion, creating an exception to the normal rule
that “another circuit’s dissenting view might normally restrain us from declaring
2004), after holding that Blakely applies to sentences imposed under the Federal Sentencing Guidelines, held that the error was "plain" under the second prong of the plain error test. However, the Ninth Circuit so held only in conclusory manner, and we note that, at the time of the Ninth Circuit opinion, the Seventh and Fifth Circuits had reached opposite conclusions about the effect of Blakely upon the Federal Sentencing Guidelines, but the Ninth Circuit did not acknowledge the split between the two circuits. Moreover, since Ameline, three other circuits have joined the Fifth Circuit in rejecting Blakely's application to the Guidelines. For these reasons, as well as the reasons discussed in the text below, we do not find Ameline persuasive. 6 The Eighth Circuit based this in large part on its view that none of the Supreme Court opinions relied upon in Pineiro were based on Sixth Amendment challenges. But see discussion below with respect to Edwards v. United States, 523 U.S. 511, 118 S. Ct. 1475 (1998).
10 the current law is clear.” Pirani, ___ F.3d at ___.
We do not agree with the Pirani panel’s dismissal of the Fifth Circuit’s
opinion. While we need express no opinion on whether we actually would reach
the same conclusion as the Fifth Circuit if a Blakely challenge was properly before
us, we believe that the Fifth Circuit’s view is rational–i.e. a reluctance to find that
Blakely has undone years of Supreme Court precedent focusing on the maximum
sentence as stated in the United States Code. We believe this is a rational view
despite the fact that other circuits, although not the majority, have held that
Blakely has in fact undone this established understanding. Further, we note that
the Pirani panel ignored the recent order of the Fourth Circuit in United States v.
Hammoud, No. 03-4253, 2004 WL 1730309 (4th Cir. Aug 02, 2004) (en banc),
announcing the majority decision of the en banc Fourth Circuit that Blakely does
not apply to the Guidelines.7 Additionally, as discussed above, both the en banc
Sixth Circuit and a panel of the Second Circuit, in cases not decided at the time
Pirani was decided, have recently held that Blakely does not apply to the
Guidelines. See United States v. Koch, No. 02-6278, (6th Cir. Aug. 13, 2004);
United States v. Mincey, ___ F.3d ___, 2004 WL 1794717 (2d Cir. Aug. 12,
7 This order states that majority and dissenting opinions will be forthcoming. Thus, we do not yet know the rationale the Fourth Circuit adopted.
11 2004). For the above reasons we disagree with the Pirani panel’s conclusion that
Blakely obviously applies to the Federal Sentencing Guidelines.
The fact that the error was not obvious or plain in the instant case is further
bolstered by the factual similarities between this case and Edwards v. United
States, 523 U.S. 511, 118 S. Ct. 1475 (1998). In Edwards, the defendants
challenged the district court's finding at sentencing that the drug conspiracy
involved both cocaine and crack 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. Id. at 513, 118 S. Ct. at 1476-77.
The Supreme Court first 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 defendants' 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:
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
12 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.
Id. at 515, 118 S. Ct. at 1477-78.
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. However, as the above language makes
clear, in Edwards the Supreme Court clearly 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.8 Although
Edwards was decided prior to Apprendi, that decision seems to approve Edwards,
8 Although the language of the opinion is 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 sentencing 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 offence 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 respect to drug type and quantity); United States Sentencing Commission, Guidelines Manuel, § 2D1.1(c) (Nov. 1994).
13 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 quoted the first two sentences of the above language
from Edwards in a parenthetical. Apprendi, 530 U.S. at 497 n.21, 120 S. Ct. 2348.
It is true that there apparently was no argument in Edwards to the effect that
the maximums set out in the various Guidelines provisions constituted the relevant
maximum for Sixth Amendment purposes; nevertheless, the 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.
Therefore, Edwards, particularly in light of its strong factual similarities to the
instant case, further bolsters our view that any error in Duncan's sentencing was
not "clear" or "obvious."9
For the foregoing reasons the judgment, sentence, and forfeiture of the
district court are AFFIRMED.
9 In light of our decision that Duncan fails to satisfy the second prong of the plain error standard, the "obvious" or "clear" prong, we decline to address the other prongs.