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U.S. v. ROBINSON
460 F.3d 550 (2006)
UNITED STATES of America, Plaintiff-Appellee,
v.
Owen ROBINSON, a/k/a Heavy, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Kendall Schuyler, a/k/a Sleepy, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
William M. Parros, Defendant-Appellant.
Nos. 03-4511, 03-4518, 03-4519.
United States Court of Appeals, Fourth Circuit.
Argued February 3, 2006.
Decided August 9, 2006.
ARGUED: Gary Allen Ticknor, Elkridge, Maryland, for Appellants. Robert Reeves Harding, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: G. Godwin Oyewole, Washington, D.C., for Appellant Owen Robinson; Gerald Durand Glass, Towson, Maryland, for Appellant William M. Parros. Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote an opinion concurring in the judgment. KING, Circuit Judge. Defendants Owen Robinson, Kendall Schuyler, and William Parros (collectively, the "Defendants") have appealed the sentences imposed on them in 2003 in the District of Maryland. This is the third separate occasion for our Court to review sentences the Defendants received on their jury convictions in 1999 for various offenses relating to a large drug trafficking conspiracy, centered in the area of Baltimore, Maryland. The district court initially sentenced the Defendants in March 2000: Robinson and Schuyler each received life in prison, and Parros received thirty years. The Defendants promptly appealed their sentences to this Court (the "First Appeals") and, in November 2001, we vacated and remanded for resentencing under Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Johnson, 26 Fed.Appx. 111, 2001 WL 1349205, at *3 (4th Cir. Nov.2, 2001) (hereinafter "Robinson I"). The Defendants were resentenced by the district court in May 2003, and they thereafter again appealed their sentences to this Court (the "Second Appeals"). By opinion filed in December 2004, we rejected their new contentions of sentencing error and affirmed their 2003 sentences. See United States v. Robinson,390 F.3d 833, 838 (4th Cir.2004) (hereinafter "Robinson II"). In January 2005, the Supreme Court issued its landmark sentencing decision in United States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Subsequently, in
April 2005, the Court granted the Defendants' petitions for certiorari, vacated our decision in Robinson II, and remanded the Second Appeals for further consideration in light of Booker. See Robinson v. United States, 544 U.S. 971-72, 125 S.Ct. 1875, 161 L.Ed.2d 719 (2005) (mem.). In Booker, the Court held, inter alia, that a sentencing court commits Sixth Amendment error if it engages in judicial factfinding, under mandatory Sentencing Guidelines, that results in a sentence exceeding the maximum term authorized by the jury verdict alone. See 543 U.S. at 245-46, 125 S.Ct. 738. As explained below, we reject the contention that the Defendants' constitutional Booker claims are subject to plain error review. The Defendants properly preserved their claims of Sixth Amendment Booker error at their resentencing proceedings in 2003 by raising timely objections under Apprendi, and their contentions here are subject to review for harmless error. And because the district court committed constitutional Booker error in its 2003 resentencing proceedings, and that error was not harmless beyond a reasonable doubt, we are obliged to vacate the Defendants' 2003 sentences and remand. I.A.On November 23, 1999, a jury in the District of Maryland convicted the Defendants and three of their co-defendants of various drug-related offenses, including conspiracy to distribute cocaine base (commonly known as "crack cocaine"), in violation of 21 U.S.C. § 846. See Robinson I, 26 Fed.Appx. 111, 2001 WL 1349205, at *1 (4th Cir. Nov.2, 2001). The essential facts underlying the Defendants' convictions were summarized by us in Robinson I as follows:
1. Under the drug conspiracy statute codified in § 846, a defendant convicted under that section "shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Because the Defendants were convicted of conspiracy to distribute an indeterminate amount of cocaine base, in violation of § 841(a), the applicable penalties are found in § 841(b)(1)(C). Under that provision, the maximum authorized penalties are a term of imprisonment of twenty years, or, if a defendant has a prior conviction for a felony drug offense, thirty years, subject to appropriate notice of the Government's intention to use such a prior conviction to enhance a sentence being provided pursuant to § 851. 2. We note that, prior to Schuyler's 2003 resentencing hearing, the Government submitted a sentencing memorandum to the district court conceding that the statutory maximum for his § 846 conspiracy conviction was twenty years, in that it had failed to properly serve Schuyler with notice under § 851. 3. Our citations to "J.A. ___" refer to the contents of the Joint Appendix, filed by the parties in these appeals. 4. The Blakely decision had not been issued by the Supreme Court when the Defendants filed briefs in the Second Appeals in October 2003. After Blakely was decided on June 24, 2004, the Defendants sought and received leave to file a supplemental brief raising their Blakely contentions. We rejected their claims under Blakely in a separate order, issued on August 18, 2004, pursuant to our decision in United States v. Hammoud,381 F.3d 316, 353 (4th Cir.2004) (en banc) (holding that Blakely did not apply to Guidelines). Hammoud was subsequently overruled by Booker. 5. In Robinson II, we incorrectly asserted, as a factual matter, that the Defendants had not objected on Apprendi grounds to their 2003 sentences. See390 F.3d 833, 837 (4th Cir. 2004). And, based on our misapprehension of the facts, we analyzed their Apprendi claims in the Second Appeals for plain error. Id. Our decision in Robinson II has since been vacated by the Supreme Court and is no longer controlling. See Amelkin v. McClure,330 F.3d 822, 828 (6th Cir.2003) (recognizing that decision vacated by Supreme Court is not controlling). Having now recognized that the Defendants properly objected at their 2003 resentencing proceedings, moreover, it would be unjust for us to repeat such a factual error. See, e.g., United States v. Noble,299 F.3d 907, 910 (7th Cir.2002) (reversing previous decision "[i]n light of this panel's mistake" on factual issue that revealed panel's "earlier holding was wrong"). As aptly observed by John Adams, during his defense of British soldiers charged with the Boston Massacre, "[f]acts are stubborn things ... and whatever may be our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence." David McCullough, John Adams 52 (Simon & Schuster 2001). 6. The Defendants were initially sentenced in March 2000, and Apprendi was decided on June 26, 2000. They were resentenced in May 2003, and Blakely was decided on June 24, 2004. 7. To be sure, the parties have assumed and asserted in the Second Appeals that the Defendants' contentions on their 2003 sentences should be reviewed by us for plain error. We are not, however, bound by the parties' views of such an issue, particularly when those views conflict with the facts or the law. "[O]ur judicial obligations compel us to examine independently the errors confessed." Young v. United States,315 U.S. 257, 258-59, 62 S.Ct. 510, 86 L.Ed. 832 (1942); see also United States v. Mackins,315 F.3d 399, 406 & n. 3 (4th Cir.2003) (engaging in extended assessment of proper standard of review even though defense counsel assumed that review was for plain error); United States v. Vontsteen,950 F.2d 1086, 1091 (5th Cir.1992) (en banc) ("The parties' failure to brief and argue properly the appropriate standard may lead the court to choose the wrong standard. But no party has the power to control our standard of review."); 5 C.J.S. Appeal and Error § 748 ("[C]oncession of a point on appeal is by no means dispositive of a legal issue."). 8. Under the Guidelines, absent any judicial factfinding, the base offense level of 12 would have resulted in the following maximum potential sentences under § 846: Robinson (27 months); Schuyler (33 months); and Parros (37 months). 9. We recently recognized, in United States v. Shatley, that the Government carries its burden of demonstrating that a constitutional Booker error is harmless beyond a reasonable doubt where "the district court announced an alternative nonguideline sentence under 18 U.S.C. § 3553(a) identical to the Guidelines sentence." See 448 F.3d at 267. Because the court announced no such alternative sentences in the 2003 resentencing proceedings, Shatley is inapplicable here. 10. Just as Cotton does not apply to our review of the Defendants' 2003 sentences, the district court erroneously applied Cotton when imposing those sentences. As explained above, each of the Defendants interposed objections under Apprendi, thus preserving their claims of Sixth Amendment error. We note that the district court erroneously applied Cotton when resentencing the defendants in 2003. The Cotton holding applies only to appellate standards of review; it has no bearing on a district court's resentencing decision. Thus, on remand, the district court should resentence the Defendants at or below their relevant statutory maximums, as established solely by the facts alleged in the indictment and found by the jury. 11. In their supplemental briefs, submitted to us following remand from the Supreme Court, the Defendants advance an additional contention raised in Robinson II — that, under the "mandate rule," the district court lacked any authority to postpone their resentencing proceedings to await a Supreme Court decision. We rejected that contention in Robinson II, and we are content to do so again here. * See Apprendi v. New Jersey,530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
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