United States Court of Appeals Fifth Circuit F I L E D REVISED JUNE 22, 2005 June 6, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 03-30481
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD CRAIG SCROGGINS,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Louisiana
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
In this direct criminal appeal our previous disposition
appears in United States v. Scroggins, 379 F.3d 233 (5th Cir.
2004). Scroggins, in October 2004, filed in the Supreme Court of
the United States a petition for writ of certiorari seeking to
review that disposition. On January 24, 2005 the Supreme Court
entered an order therein stating that, on consideration of the petition for certiorari and response thereto:
“. . . Motion of petitioner for leave to proceed in forma pauperis and petition for writ of certiorari are granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of United States v. Booker, 543 U.S. ____, 125 S.Ct. 738. ___ L.Ed.2d ___ (2005).”
The case is now again before us pursuant to that order of the
Supreme Court.
Donald Scroggins was tried on two counts of a superceding
indictment. Count one charged Scroggins and John Calvin Bryant
with conspiring with each other, and with other unnamed known and
unknown persons, from about October 1998 through about march 2001,
to possess with intent to distribute “five (5) kilograms or more of
cocaine hydrochloride (powder cocaine) and fifty (50) grams or more
of cocaine base (crack cocaine)” in violation of 21 U.S.C. §§ 841
and 846. Count two charged Scroggins (alone) with distribution,
and aiding and abetting distribution, of cocaine powder on or about
November 15, 2000 in violation of 21 U.S.C. § 841(a)(1). The jury
found Scroggins guilty on count one and not guilty on count two
(Bryant was found not guilty on count one). Scroggins filed a
timely motion for new trial which the district court denied.
Thereafter, on April 24, 2002, the district court sentenced
Scroggins to life imprisonment and five years’ supervised release.
On Scroggins’s timely appeal to this court, we remanded the
case to the district court for further consideration of Scroggins’s
2 motion for new trial in the interests of justice. United States v.
Scroggins, 379 F.3d 233 at 256-57, 269 (5th Cir. 2004). We also
remanded to the district court to conduct an in camera inspection
of the presentence reports of two prosecution witnesses (Buchanan
and Byrd) – which reports Scroggins had requested pretrial – to
determine whether they contained any material Brady or Giglio
information and, if so, to determine whether the failure to produce
that information was harmless. Scroggins, 379 F.3d at 263-64, 269.
We rejected Scroggins’s other two challenges to his conviction.
Id. at 262-63, 269.
At sentencing, the district court determined, at least largely
(if not entirely) on the basis of the trial testimony of government
witness Buchanan, that Scroggins’s conspiracy conviction involved
“more than 1.5 kilograms of crack cocaine,” id. at 265, found that
Scroggins had obstructed justice, id., and that he was dealer or
organizer of a drug organization with five or more participants,
which produced an unadjusted base offense level of 38 calculated
solely on the amount of crack cocaine, U.S.S.G. § 2D1.1(c)(1), to
which was added upward adjustments of four levels under U.S.S.G. §
3B1.1(a) for being a leader or organizer and of two more levels
under U.S.S.G. § 3C1.1 for obstruction of justice, for a total
adjusted base offense level of 43, which under the Guidelines
provides a guideline sentence of only life imprisonment for an
individual, such as Scroggins, in criminal history category I.
3 U.S.S.G., Sentencing Table.1
In his appeal to this court Scroggins argued, in his fourth
point of error, that Buchanan’s trial testimony “did not bear a
sufficient indicia of reliability upon which to base a life
imprisonment sentence,” citing U.S.S.G. § 6A1.3 (sentencing
1 Actually, the adjusted base offense level would be 44, but the U.S.S.G. Sentencing Table, application note 2, provides that “[a]n offense level of more than 43 is to be treated as an offense level of 43.” The applicable quantity of cocaine powder was not determined by the district court. We observed, Scroggins at 265 n.56, that in any event the amount thereof shown to be involved was “not close to” 150 kilograms required under U.S.S.G. § 2D1.1(c)(1) to produce an unadjusted base offense level (calculated solely on that drug’s quantity) of 38 (or, with the noted upward adjustments, an adjusted base offense level of 43). If the quantity of cocaine powder had been “at least 50 KG but less than 150KG” then the unadjusted base offense would have been 36 (U.S.S.G. § 2D1.1(2)) and the adjusted base level would have been 42, producing a Guideline range of 360 months to life; if the quantity of cocaine powder had been “at least 15 KG but less than 150 KG” then the unadjusted base offense level would have been 34 (U.S.S.G. § 2D1.1(3)) and the adjusted base offense would have been 40, producing a guideline range of 292-365 months. If the quantity of crack cocaine had been “at least 500 G but less than 1.5 KG” then the unadjusted base offense level would have been 36, and the adjusted base offense level 42, producing a guideline range of 360 months to life; if the quantity of crack cocaine had been “at least 150 G but less than 500 G” then the unadjusted base offense level would have been 34, and the adjusted base offense level 40, producing a guideline range of 292- 365 months; if the quantity of crack cocaine had been “at least 50 G but less than 150 G” then the unadjusted base offense level would have been 32, and the adjusted base offense level 38, producing a guideline range of 235-293 months. 21 U.S.C. § 841(b)(A)(ii) and (iii) provides for a statutory range of punishment of “not less than ten years or more than life” for drug trafficking involving 5 kilograms or more of cocaine powder or 50 grams or more of cocaine base. For the next lesser quantities, namely at least 500 grams of cocaine powder or at least 5 grams of cocaine base, the statutory sentencing range is “not less than 5 years and not more than 40 years.” 21 U.S.C. § 841(b)(1)(B)(ii & iii).
4 information must have “sufficient indicia of reliability to support
its probable accuracy”). This objection was raised in the district
court. Under this point of error, Scroggins’s principal contention
focused on the quantity of crack cocaine, although he also argued
that Buchanan’s testimony supporting the obstruction of justice
enhancement was unreliable (and he mentioned in passing, without
elaboration, that “Buchanan’s testimony also resulted in a four
level leadership enhancement”). We rejected this contention as to
the obstruction of justice enhancement. Scroggins at 265.
However, as to the quantity of crack cocaine found, addressed in
part IV.D of our opinion (id. at 265-69), “[w]e conclude[d] that
the district court did not sufficiently scrutinize Buchanan’s
inconsistent statements and did not provide a rationale in the
record for believing one version over another . . . [and] did not
say anything about the differences between Buchanan’s trial
testimony and the information Buchanan gave [agent Green] and of
which Green testified at sentencing.” Id. at 267-68. Accordingly,
“we remand[ed] the case for resentencing with respect to the
quantity of crack cocaine (and, should it become relevant, the
quantity of powder cocaine).” Id. at 269. In our conclusion, we
“vacate[d] Scroggins’s sentence as to the quantity of crack
cocaine” and remanded “for resentencing not inconsistent with this
opinion (Part IV.D hereof above).” Id. We pointed out that our
opinion, of course, did not contemplate that there would be
5 resentencing thereunder “if the district court, pursuant to our
remand, first sets aside the conviction.” Id. at 269 n. 16.
We rejected Scroggins’s three other challenges to his
sentence. Scroggins, 379 F.3d at 269 n.62. For the first time on
appeal he contended, in his fifth assignment of error, that “[f]or
the reasons set forth in United States v. Buckland, 259 F.3d 1157,
1163 (9th Cir. 2001), rev’d, 277 F.3d 1173 [9th Cir. 2002] (en
banc), cert. denied, 533 U.S. 1105 (2002) . . . § 841(b)(1)(A) is
unconstitutional in light of . . . Apprendi v. New Jersey, 530 U.S.
466 (2000). As a result . . . Mr. Scroggins . . . should be
sentenced in accordance with . . . § 841(b)(1)(C).” We rejected
that proposition, citing, inter alia, United States v. Fort, 248
F.3d 475, 483 (5th Cir. 2001). Scroggins also contended, in his
sixth and final assignment of error, that his “sentence . . .
offends the due process clause . . . in that Mr. Scroggins was held
responsible for drug amounts representing a thirty fold increase in
the amount of cocaine base charged in the indictment,” without a
jury determination of the quantity of cocaine base in excess of
fifty grams. This contention was not raised in the district court.
We rejected that assignment of error, citing, inter alia, United
States v. Salazar-Flores, 238 F.3d 672, 673-74 (5th Cir. 2001).
Scroggins’s remaining challenge to his sentence was raised for the
first time in a supplemental brief filed in July 2004, in which he
argued that his sentence was unconstitutional because it was
6 enhanced by drug quantities, leadership role, and obstruction of
justice, not found by the jury, relying on the reasoning of Blakely
v. Washington, 124 S.Ct. 2531 (2004). He conceded that this
contention would have to be reviewed under the plain error rule, as
an objection on this basis was not made below. Because Scroggins
did not file or seek to file this supplemental brief until nearly
two months after oral argument (and had not previously raised it in
this court, at oral argument, or in his opening brief, reply brief
or earlier supplemental briefs), we “decline[d] to address this
issue now,” noting that our order granting the motion to file this
supplemental brief stated that it did not determine that any issue
raised in the brief was properly or timely before us. Id., 379
F.3d at 269-70 n.62. We likewise noted that that issue was in any
event foreclosed by our decision in United States v. Pineiro, 377
F.3d 464 (5th Cir. 2004).
Following the above noted remand for reconsideration in light
of Booker, we requested that the parties file supplemental letter
briefs with us stating their respective contentions as to the
proper course of action we should follow.
In his post-remand brief Scroggins contends:
“. . . in the event the District Court was to deny a new trial on the grounds identified in this Court’s earlier opinion . . . Mr. Scroggins submits that he could not then be resentenced under a sentencing guideline system that the United States Supreme Court found to be unconstitutional in Booker. In short, Mr. Scroggins would be entitled to be resentenced in accordance with Justice Stephen’s [sic] merits opinion in Booker. . . .
7 . . .
As to Justice Breyer’s remedy opinion in Booker, if a new trial was denied by the District Court on remand, Mr. Scroggins submits that at any resentencing the Due Process Clause would prohibit the District Court from imposing a sentence greater than that authorized by the jury verdict in the case. The clause prohibits courts from interpreting a law in such a way as to do indirectly what a legislature may not do directly, that is increase a defendant’s exposure to punishment beyond that which was authorized when the conduct occurred. . . . Here, Mr. Scroggins expected to be sentenced under mandatory sentencing guidelines consistent with his Sixth Amendment right to have those facts necessary to increase punishment to be proven beyond a reasonable doubt. Nevertheless, applying Justice Breyer’s remedial decision in Booker, which demoted the mandatory guidelines to advisory guidelines, to Mr. Scroggins, would strip Mr. Scroggins of his constitutional protections against ex post facto laws created by a judicial enlargement.”
We reject that contention. It is at the least implicitly
contrary to the holding in Justice Breyer’s Booker opinion that “.
. . we must apply today’s holdings – both the Sixth Amendment
holding and our remedial interpretation of the Sentencing Act – to
all cases on direct review.” Booker, 125 S.Ct. at 769 (emphasis
added). Scroggins’s case is still on direct review. There is no
warrant for not applying Justice Breyer’s Booker opinion to this
case. Moreover, Scroggins’s contention in this respect is plainly
inconsistent with our holdings in, for example, United States v.
Mares, 402 F.3d 511 (5th Cir. 2005) (No. 03-21035, March 4, 2004,
Slip Op. 1667), pet. for cert. filed March 30, 2005 (No. 04-9517),
and United States v. Holmes (No. 03-41738, 5th Cir. April 6, 2005,
Slip Op. 2160). Each of those cases was a direct appeal from a
8 conviction, following a jury trial, where the pre-Booker sentence
was based on guideline determinations depending on facts not found
by the jury. We stated in Mares that
“[Appellant] argues that he was deprived of his Sixth Amendment right to a jury trial because the sentencing judge enhanced his sentence under a mandatory Guidelines system based on facts found by the judge that were neither admitted by him nor found by the jury. Mares, however, did not object on this basis in the district court and our review is only for plain error.” Id., Slip op. at 1676.2
We went on to hold that there was error and that it was plain, but
that the appellant had not carried his burden of demonstrating
prejudice, stating:
“. . . the error is the imposition of a sentence, which was enhanced by using judge found facts, not admitted by the defendant or found by the jury, in a mandatory Guideline system.
. . . Since the error was using extra verdict enhancements to reach a sentence under Guidelines that bind the judge, the pertinent question is whether Mares demonstrated that the sentencing judge – sentencing under an advisory scheme rather than a mandatory one – would have reached a significantly different result.” Slip op. at 1677.
Similarly, we stated in Holmes (likewise a plain error review in a
jury tried case):
“The precise Sixth Amendment error identified in Booker is not the use of extra-verdict enhancements that increase a sentence; the constitutional error is that
2 This is likewise the case here, there was no objection in the district court that the sentence was based on facts not found by the jury. Nor (except as to drug quantity) was any such objection made in this court (apart from the overly belated July 2004 post-argument supplemental brief).
9 extra-verdict enhancements were being used under mandatory guidelines. . . .
Thus, in applying the third prong [of the plain error test], ‘the pertinent question is whether [the defendant] demonstrated that the sentencing judge – sentencing under an advisory scheme rather than a mandatory one – would have reached a significantly different result.’ [quoting Mares] . . . Absent some indication in the record that the outcome would have been different if the district court had been operating under an advisory system, a defendant fails to carry his burden of demonstrating prejudice and therefore that the error affected his substantial rights.” Id. at slip op. 2189.
The government in its post-remand brief takes the position
that since we have ordered resentencing as to drug quantity, that
such resentencing should be pursuant to Justice Breyer’s opinion in
Booker. We agree. The government, however, also takes the
position that we previously found no error (nor insufficiency of
evidence) as to the guideline enhancements for leadership role or
obstruction of justice, and there is nothing to indicate that under
an advisory, rather than a mandatory, guidelines system the trial
judge would not have similarly enhanced the sentence, so as to
those aspects of the sentence Scroggins had not carried his burden
on plain error review of demonstrating prejudice and, accordingly,
there should be no resentencing as to them. While we generally
agree with the government’s premises, we do not fully agree with
its ultimate conclusion in this respect as applied to the facts
here.
Here, we have only a single sentence for a single offense. If
the district court does not grant a new trial, pursuant to our
10 prior opinion, there will be a resentencing, at least as to
determination of drug quantity. Justice Breyer’s Booker opinion
describes sentencing under an advisory (non-mandatory) guidelines
scheme, as follows:
“Without the ‘mandatory’ provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals. See 18 U.S.C.A. § 3553(a) (Supp. 2004). The Act nonetheless requires judges to consider the Guidelines ‘sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant,’ § 3553(a)(4), the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1), (3), (5)-(7) (main ed. and Supp. 2004). And the Act nonetheless requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. § 3553(a)(2) (main ed. and Supp. 2004) . . .” Id., 125 S.Ct. at 764- 65.
The standard of review of a sentence imposed under this “advisory”
system – at least assuming that the sentencing court did consider
such matters and did not err in its determination of what the
guidelines advised – is reasonableness. While some or all of the
particular matters to be considered as above indicated apply to the
individual steps by which an overall sentence is arrived at, many
will apply, or also apply, to the ultimate sentence itself – or to
a distinct component of it such as the term of imprisonment –
particularly where the sentence is only for a single offense.
Resentencing herein shall be pursuant to Justice Breyer’s
11 Booker opinion, with Scroggins and counsel present and having,
inter alia, an opportunity to speak under FED. R. CRIM. P. 32(4)(A).
The district court may, should it deem it appropriate, reconsider
its determinations that Scroggins was a leader or organizer and/or
obstructed justice, as well as its drug quantity determinations,
and it shall evaluate the ultimate sentencing effect of any and all
such determination under an advisory, non-mandatory, guidelines
system. We also note in this connection that in respect to all
these three determinations as made at the original sentencing, the
district court relied largely on the trial testimony of Buchanan.
The government in its post-remand brief states that:
“. . . the case should be remanded in accordance with the Fifth Circuit’s previous opinion so that the government may establish with more certainty the types and quantity of drugs involved in defendant’s offense. The district judge will then have an opportunity, not only to hear and consider evidence with respect to amounts of drugs defendant was involved with, but also the issue of whether defendant should be granted a new trial.”
We hold that, under the particular circumstances of this case, the
district court may also, in its discretion, hear and consider
evidence as to Scroggins’s role in the offense under section 3B1.1
of the Guidelines and whether he obstructed justice under section
3C1.1 of the Guidelines. The court may also hear evidence bearing
on whether or not – notwithstanding that the Guidelines (and
pertinent Sentencing Commission policy statements) must be
considered and taken into account – a non-guideline sentence would
be more appropriate in light of the other factors and
12 considerations set out in Justice Breyer’s Booker opinion.
Accordingly our prior disposition is modified so that
Scroggins’s sentence is VACATED and, if the district court does not
grant a new trial pursuant to our prior opinion, then Scroggins
shall be resentenced consistent with this opinion. In all other
respects our prior disposition remains in effect.
SENTENCE VACATED; CAUSE REMANDED.