Opinion
Nos. 05-5189-cr, 05-5456-cr, 05-5533-cr SUMMARY ORDER.
July 18, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of conviction as to Timothy Givens and Lee Blue is AFFIRMED, but their cases are REMANDED for full re-sentencing in light of Kimbrough v. United States, 17 S. Ct. 558 (2007). The sentence as to Ricky Blue on Count One is VACATED and his case is REMANDED for re-sentencing pursuant to 21 U.S.C. § 848(b).
FOR DEFENDANT-APPELLANT GIVENS: Donald Thompson, Rochester, N.Y.
FOR DEFENDANT-APPELLANT L. BLUE: Christopher D. Thomas, Nixon Peabody LLP, Rochester, NY.
FOR DEFENDANT-APPELLANT R. BLUE: Bruce B. Bryan, Syracuse, N.Y.
FOR APPELLEE: Stephan J. Baczynski, Assistant United States Attorney for the Western District, for Terrance P. Flynn, United States Attorney, Buffalo, NY.
PRESENT: HON. JON O. NEWMAN, HON. RALPH K. WINTER, HON. BARRINGTON D. PARKER, Circuit Judges.
Timothy Givens, Lee Blue ("L. Blue") and Ricky Blue ("R. Blue") each appeal from a judgments entered by the United States District Court for theWestern District of New York (Siragusa, J.) arising from their convictions on various charges related to their possession and distribution of cocaine and cocaine base. The district court sentenced Givens principally to 420 months of incarceration, L. Blue was sentenced to 228 months' incarceration, and R. Blue was sentenced to life imprisonment pursuant to 21 U.S.C. § 848(a) and (b) for engaging in a continuing criminal enterprise. All three defendants appealed. We affirmed their convictions but remanded their cases to the district court to determine whether it would re-sentence the defendants in light of United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). United States v. Givens, 2005 U.S. Dist. LEXIS 10119, at *5 (2d Cir. June 1, 2005). Following remand, the district court declined to re-sentence the defendants and they again appeal. We assume familiarity with the underlying facts and procedural history, as well as the issues on appeal.
Givens and L. Blue both contend that the district court declined to re-sentence them based on its determination that its prior sentence was "reasonable"and, in so doing, incorrectly applied a standard reserved for appellate review of sentences. They are correct that we review a district court's sentence for reasonableness. United States v. Canova, 412 F.3d 331, 350 (2d Cir. 2005); United States v. Brady, 417 F.3d 326, 332 (2d Cir. 2005). However, this contention is besides the point because the record reflects that the district court properly considered "its responsibility to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing as set forth in 18 U.S.C. Section 3553" as to both defendants. We have repeatedly emphasized that a sentencing judge is not required to " precisely identify either the factors set forth in § 3553(a) or specific arguments bearing on the implementation of those factors in order to comply with [its] duty to consider all the § 3553(a) factors along with the Guidelines applicable range." United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006). The record is clear that the district court considered the relevant Guidelines range for both Givens and L. Blue as well as the factors under 18 U.S.C. § 3553.
Givens and L. Blue next argue that the district court improperly found facts related to drug quantity that were unproven by the jury and then relied on these facts to enhance their sentences. Givens separately contends that the district court incorrectly applied enhancements based on its determination that he was a leader of the charged conspiracy and that his offense was committed while he was on probation. Finally, he argues that the district court improperly assigned him an additional criminal history point for a prior offense of battery to which he pled nolo contendere.
We find no error with the court's sentencing determinations as to Givens and L. Blue. As for drug quantity, a district court is "`entitled to consider all transactions engaged in by [a defendant] or by his coconspirators . . . if the transactions were either known to him or reasonably foreseeable to him,'" United States v. Richards, 302 F.3d 58, 70 (2d Cir. 2002) (quoting United States v. Podlog, 35 F.3d 699, 706 (2d Cir. 1994)). The district court enhanced both Givens and L. Blue's sentences based on its finding that trial witnesses had credibly testified as to the amount of narcotics that they had distributed. This finding was well within the court's authority. See United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007). A jury's determination of these amounts was not required.
Similarly, given the number of people involved in, and the extensive nature of the charged conspiracy for which Givens was convicted, the district court correctly applied an enhancement based on his leadership role. Since Givens was discharged from probation in July 1996 and the government established that he began purchasing cocaine in the fall of 1995, the court also properly concluded that Givens participated in the charged conspiracy while on probation.
Finally, the district court properly assessed a point for a battery charge where Givens pled nolo contendere but adjudication was withheld. U.S.S.G. § 4A1.1(c) allows the sentencing court to add one point to a defendant's criminal history calculation for each prior sentence of imprisonment. U.S.S.G. § 4A1.2(a)(1) defines prior sentence as "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense." (emphasis added). Indeed, U.S.S.G. § 4A1.2(f) makes clear that a "diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered." Accordingly, we reject Givens' and L. Blue's claims on appeal.
R. Blue's next contention is that he was improperly sentenced under Count One of the indictment which charged him with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a). Section 848(a) provides that: "[a]ny person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment,[.]" At sentencing, the court found that, because R. Blue had acted as the principal leader of the criminal enterprise and was responsible for distributing 1.5 kilograms of crack cocaine, his conduct fell under 21 U.S.C. § 848(b) which requires a life sentence for a defendant who is convicted of engaging in a continuing criminal enterprise under § 848(a) if the defendant had a principal role in the enterprise and committed a violation "involv[ing] at least 300 times the quantity of a substance described in subsection 841(b)(1)(B)." Both factors were properly attributable to R. Blue.
At re-sentencing, the district court stated that modifying its sentence was unnecessary because R. Blue had been sentenced in accordance with § 848(b), there was no dispute that R. Blue was one of several "principal administrators" of the enterprise, and the record showed that he had distributed 1.5 kilograms of cocaine base. The court rejected R. Blue's claim that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury, not the court, was required to find any factors increasing his sentence. It concluded that Apprendi did not apply because R. Blue's sentence of life imprisonment did not exceed the statutory maximum authorized under 21 U.S.C. 848(a). See Hines v. United States, 66 Fed. Appx. 257, 260 (2d Cir. May 29, 2003)
We find R. Blue's challenge persuasive as we have previously stated that 21 U.S.C. § 848(b) "requires the jury to find, beyond a reasonable doubt, elements in addition to those stated in section 848(a) . . . [thus,] section 848(b) result[s] in a new offense rather than a sentence enhancement." United States v. Torres, 901 F.2d 205, 240 (2d Cir. 1990). Since a violation of § 848(b) constitutes a new offense rather than a sentence enhancement, the critical statutory factors — role and drug quantity — must be found by a jury. The record indicates that the court, not the jury, found that R. Blue distributed in excess of 1.5 kilograms of cocaine base. Consequently, R. Blue's mandatory minimum life sentence on Count One must be vacated and remanded for re-sentencing under 21 U.S.C. § 848(a).
The Supreme Court has recently stated that district courts may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses. Kimbrough v. United States, 128 S. Ct. 558 (2007). Accordingly, we now vacate Givens and L. Blue's sentences and remand pursuant to United States v. Regalado, 518 F.3d 143 (2d Cir. 2008), to allow the district court to determine whether it would impose a different sentence on them, as well as on R. Blue, given its discretion to depart from the Guidelines for crack cocaine.