Lead Opinion
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
Concurring Statement filed by Senior Circuit Judge EDWARDS, with whom Senior Circuit Judge SILBERMAN joins.
Dissenting opinion filed by Circuit Judge BROWN.
Appellant pled guilty to maintaining a crack house, in violation of 21 U.S.C. § 856(a)(2), and to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court sentenced him to a 97-month term of imprisonment under U.S. S.G. § 2D1.8(a)(l), a provision of the United States Sentencing Guidelines (“Guidelines”) that imposes a substantially higher base offense level for persons convicted of maintaining a drug establishment who are also found to have participated in the underlying drug crime.
Appellant now challenges this sentence, arguing both that the District Court erred in applying § 2D1.8(a)(l) to calculate his base offense level, because there was insufficient evidence in the record that he actually “participated” in the underlying drug offense, and that his sentence is substantively unreasonable. In addition, appellant requests that we remand his case for resentencing in light of recent amendments to the Guidelines that decrease the base offense levels for certain crack cocaine offenses.
The parties suggest that, because he never objected to the District Court that the evidence was insufficient to support its reliance on § 2D1.8(a)(l), appellant’s claim on appeal must be reviewed only for plain error under United States v. Olano,
On remand, if appellant files a motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence, the District Court should also consider in the first instance the applicability of the recent amendments to the Guidelines relating to base offense levels for crack cocaine offenses. Finally, because we remand for resentencing, we do not reach appellant’s challenge to the substantive reasonableness of his sentence.
I. Background
On August 30, 2004, appellant was charged by information with maintaining a crack house, in violation of 21 U.S.C. § 856(a)(2), and with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On September 13, 2004, appellant pled guilty to both counts pursuant to a written plea agreement.
The proffer of facts supporting appellant’s guilty plea is simple and straightforward. On June 4, 2003, officers of the Metropolitan Police Department executed a search warrant at an apartment leased by appellant. Though appellant shared the apartment with his co-defendant, the two men had separate bedrooms. Upon entering the apartment, the officers found the co-defendant trying to step into the closet of his bedroom. The officers’ search of the co-defendant’s bedroom closet revealed 35.3 grams of crack cocaine, a loaded Ruger .40 caliber semiautomatic handgun, $676 in cash, a digital scale, identifying documents, mail, a wallet, and a white plate with white rock residue. In the dining room of the apartment, the officers found a Pyrex measuring cup containing a white substance and a box of rubber gloves. In appellant’s bedroom, the officers found a triple-beam scale, a loaded Beretta 9-mm semiautomatic handgun, a box of 9-mm ammunition, 63.25 grams of marijuana, empty Ziploc bags, and Ziploc bags containing green, weed-like material. A search of appellant turned up $545 in cash. Appellant’s fingerprints were later lifted from the plate with the white rock residue found in his co-defendant’s bedroom closet.
At the plea hearing, appellant admitted that the factual proffer was accurate. He also admitted that he knew that crack was present in his apartment and that he allowed the crack to be stored there. Plea H’rg Tr. at 30 (Sept. 13, 2004), reprinted in Appellant’s Appendix (“App.”) at Tab 1.
Relying on the 2005 edition of the United States Sentencing Commission Guidelines Manual, the PSR prepared by the probation office calculated appellant’s base offense level under U.S.S.G. § 2D1.8(a), the section of the Guidelines that governs convictions for maintaining a drug establishment under 21 U.S.C. § 856(a)(2). For a defendant who also participated in the underlying drug offense, § 2D1.8(a)(l) advises the sentencing court to use the offense level for the relevant drug type and quantity from U.S.S.G. § 2D1.1. See U.S.S.G. § 2D1.8(a)(l). The guideline further advises that the offense level from § 2D1.1 should be reduced by four levels and capped at level 26 if the defendant “had no participation in the underlying controlled substance offense other than allowing use of the premises.” U.S.S.G. § 2D1.8(a)(2). Although the PSR contained no factual findings on appellant’s participation in the underlying drug of
At the April 19, 2006 sentencing hearing, the District Court accepted the PSR. See Sentencing H’rg Tr. at 4-5, 32-33 (Apr. 19, 2006), App. at Tab 2. However, the District Court made no mention of § 2D1.8(a)(l) and made no factual findings on appellant’s participation in the underlying drug offense. Instead, the trial judge offered the following observations:
Letting someone use your apartment to cook and store crack cocaine for sale was no benign offense. That conduct helped keep the most vulnerable and helpless among us strung out on poison. And keeping a loaded semiautomatic pistol in a crack house did nothing to promote a safe environment.... However, it is true that you committed no act of violence[,] you did not deploy or brandish the pistol, and you did not use it here in connection with pedaling [sic] crack.
Id. at 33. After weighing the factors to be considered in imposing a sentence, see 18 U.S.C. § 3553(a), the District Court sentenced appellant to 97 months of imprisonment. Id. at 30-36.
II. Analysis
A. Standard of Review
Following the Supreme Court’s decisions in United States v. Booker,
In applying the clearly erroneous standard, an appellate court must remain mindful that
judicial findings of fact are presumptively correct. See Bose Corp. v. Consumers Union of U.S., Inc.,466 U.S. 485 , 500,104 S.Ct. 1949 ,80 L.Ed.2d 502 (1984). This presumption “recognizes and rests upon the unique opportunity afforded the trial court judge to evaluate the credibility of witnesses and to weigh*845 the evidence,” Inwood Labs., Inc. v. Ives Labs., Inc.,456 U.S. 844 , 855,102 S.Ct. 2182 ,72 L.Ed.2d 606 (1982), the comparative expertise of trial and appellate judges, and the cost of duplicative appellate decisionmaking, Anderson v. Bessemer City,470 U.S. 564 , 574-75,105 S.Ct. 1504 ,84 L.Ed.2d 518 (1985). Pursuant to this presumption, a finding of fact will not be overturned as “clearly erroneous” unless, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 573,105 S.Ct. 1504 .
HaRRY T. Edwards & Linda A. Elliott, Federal Standards of Review — Review of DistriCt Court Deoisions and Agenoy Actions 62 (2007). “However, when a district judge altogether fails to make findings or fails to make findings with respect to a material issue, appellate courts normally vacate the judgment and remand for the judge to make those findings.” Id. at 63.
“[Fjactfinding is the basic responsibility of district courts, rather than appellate courts, and ... the Court of Appeals should not ... resolve[ ] in the first instance [a] factual dispute which had not been considered by the District Court.”
Pullman-Standard,
The question that we face in this case is whether the District Court judge made factual findings on appellant’s participation in the underlying drug offense sufficient to survive appellate review. Because, as we explain in the following sections, there are no such findings and we can infer none, we are obliged to remand the case to the trial court for appropriate findings.
B. Appellant’s Challenge to the Sufficiency of the Evidence Supporting the District Court’s Reliance on § 2D1.8(a)(l)
Appellant contends that his sentence should be reversed for two principal reasons: First, the District Court made no factual finding that appellant participated in the underlying controlled substance offense; and, second, the record is insufficient to support a finding of participation. Appellant thus contends that the District Court erred in applying § 2D1.8(a)(l) to calculate his base offense level.
The parties have briefed and argued the question of who bears the burden of proof under § 2D1.8(a). Appellant contends that the Government carries the burden of proving participation under § 2D1.8(a)(l). The Government, in turn, argues that when non-participation is at issue under § 2D1.8(a)(2), the defendant bears the burden of proving non-participation because it is a mitigating factor in sentencing. As explained in Part II.B.2 infra, we hold that remand is necessary in this case because the District Court failed to make any finding on appellant’s participation or non-participation. Because the District Court will be required to apply the correct legal standard in its factfinding on remand, we first address the matter of the burden of proof. See, e.g., United States v. Barry,
1. Section 2Dl.8(a) and the Participation Requirement
Section 2D1.8 of the November 1, 2005 Sentencing Guidelines provides:
(a) Base Offense Level:
(1) The offense level from § 2D1.1 applicable to the underlying controlled substance offense, except as provided below.
(2) If the defendant had no participation in the underlying controlled substance offense other than allowing use of the premises, the offense level shall be 4 levels less than the offense level from § 2D1.1 applicable to the underlying controlled substance offense, but not greater than level 26.
The criminal statute to which appellant pled guilty, 21 U.S.C. § 856(a)(2), does not require the Government to prove a defendant’s participation in the underlying offense as an element of the crime. The plain language of the applicable Guideline, however, requires a finding of such participation for the higher offense level in § 2D1.8(a)(l) to apply. Because, under the Guidelines, the fact of participation enhances a defendant’s sentence, the Government bore the burden of proving participation under § 2D1.8(a)(l) by a preponderance of the evidence. See United States v. Price,
The Government does not dispute that it carried the burden of proving appellant’s participation under § 2D1.8(a)(l); nor does the Government doubt that proof of participation would necessarily refute any claim of non-participation. Rather, the Government advances the somewhat perplexing argument that, because a defendant generally bears the burden of proof on mitigating factors at sentencing, appellant bore the burden of proving non-participation under § 2D1.8(a)(2). Appellee’s Br. at 11-13. See United States v. Riley,
The Government’s argument is specious, especially given that it does not dispute that the prosecution is obliged to prove participation without regard to whether § 2D1.8(a)(2) is a mitigating factor. It is not correct, as our dissenting colleague suggests, that the District Court’s obligation to make a factual finding about participation “arguably arises only when the defendant invokes [§ 2D1.8(a)(2)] and offers supporting evidence.” Because participation is an element of the sentence, and the Government “carries the burden of proving any facts that may be relevant in sentencing,” Price,
Furthermore, § 2D1.8(a) by its plain terms provides for a base offense level, not a mitigating departure. The section is titled “Base Offense Level” and advises the sentencing court either to import the “offense level” from § 2D1.1 if the defendant also participated in the underlying drug offense, or to reduce that “offense level” if the defendant “had no. participation.” U.S.S.G. § 2D1.8(a)(l), (2). See United States v. Leasure,
The Tenth Circuit’s decision in United States v. Dickerson,
2. The Need to Remand the Case for Further Factfinding
The Government argues in the alternative that there was sufficient evidence in the record from which the District Court could have concluded that it met its burden of proving that appellant actually participated in the underlying offense. In particular, the Government points to several pieces of evidence from the factual proffer, including the plate with white rock residue containing appellant’s fingerprints that officers found in his co-defendant’s closet as well as the drug paraphernalia and gun found in the shared dining room and appellant’s bedroom. Appellee’s Br. at 14-17. The problem here is that the District Court made no findings of fact on participation. We can only speculate as to what the trial judge might have concluded from the evidence had such findings been made. The District Court’s only comments on appellant’s conduct concerned the charged offense of maintaining a crack house. See Sentencing H’rg Tr. at 33 (“Letting someone use your apartment to cook and store crack cocaine for sale was no benign offense.”). If anything, these comments might be seen to suggest that appellant did not participate in a crack offense in any way beyond allowing others to store crack at his apartment. See id. (“[Y]ou committed no act of violence[,] you did not deploy or brandish the pistol, and you did not use it here in connection with pedaling [sic] crack.”) (emphasis added).
The Government suggests that we can infer the facts necessary to conclude that the District Court implicitly found that appellant participated in the underlying offense. See, e.g., United States v. Mastropierro,
Without explicit findings, we cannot conclude with any certainty that the District Court was aware of the participation requirement in § 2D1.8(a)(l) or that it employed the correct legal standard in determining appellant’s sentence. Where, as here, the evidence points to no clear conclusion on appellant’s alleged participation, we will not infer it. Rather, the case must be remanded to allow the trial judge to make appropriate findings that are susceptible to appellate review should the appellant again seek review in this court. See McCoy,
III. Conclusion
On remand, the District Court should determine, on the existing record, whether the Government met its burden of proving by a preponderance of the evidence that appellant participated in the underlying offense. If the District Court determines that the Government did meet its burden, then appellant will be free to seek review of the District Court’s factual findings on participation. During the proceedings on remand, appellant may file a motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence in light of the recent amendments to the Guidelines that lower the base offense levels for certain crack cocaine offenses. Finally, because we remand for resentencing, we will not consider appellant’s challenge to the substantive reasonableness of the sentence ultimately imposed by the District Court at this time. See In re Sealed Case,
For the foregoing reasons, we vacate appellant’s sentence and remand the case for resentencing consistent with this opinion.
Concurrence Opinion
concurring, with whom SILBERMAN, Senior Circuit Judge, joins:
The question before this court is whether a preponderance of the evidence supports the trial court’s decision to sentence appellant under U.S.S.G. § 2D1.8(a)(l). With no attention paid to the relevant federal rules or applicable case law, the parties assumed that appellant’s claim was subject to plain error review because he failed to preserve his objection to the trial judge’s factual findings. After determining that the District Court made no factual findings on appellant’s participation in the underlying drug offense, we had no occasion to address the applicable standard of review. Nonetheless, because we think the issue is important, especially in the context of sentencing, we write separately
Our premise is simple: We are required to apply “a clear error standard of review for appellate challenges to judicial fact-finding at sentencing,” United States v. Garcia,
As the Supreme Court recently stated in Gall v. United States, — U.S.-,
Our case law is unclear on whether a criminal defendant must object to a sentencing court’s factual determinations at the time of sentencing in order to avoid forfeiting any challenges on appeal. See United States v. Brodie,
Federal Rule of Civil Procedure 52(a) codifies the clearly erroneous standard of review for findings of fact in civil bench trials. See Fed.R.CivP. 52(a)(6). In Maine v. Taylor,
Since Taylor, the Court has reaffirmed that the clearly erroneous standard applies to judicial factfinding in criminal cases. See Hernandez v. New York,
By its own terms, Rule 52 makes clear that a party need not object to a trial judge’s findings of fact in order to preserve a challenge on appeal:
Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.
Fed.R.Civ.P. 52(a)(5). See also 9C WRIght & MilleR § 2581 (noting that “Federal Rule 52 is not intended to create formal barriers to appellate review” and that, under Rule 52(a), it is not “necessary for a party seeking to question the sufficiency of the evidence on appeal to have made an objection in the district court to the findings”); Harry T. Edwards & Linda A. Elliott, Federal Standards of Review — Review of DistriCT Court Deoisions AND Agenoy Aotions 62 (2007) [hereinafter Edwards & Elliott] (noting that, under Rule 52, an “appellate challenge to the sufficiency of the factual findings on which a judgment or judgment on partial findings rests is not affected by a party’s failure to preserve the issue”). This exemption from the error-preservation requirement has been part of Rule 52 since the Federal Rules of Civil Procedure were adopted in 1937. See 3 James Wm. Moore & Joseph Friedman, Moore’s Federal Practioe § 52.02 (1938) (analyzing the error-preservation provision in Rule 52 and noting that “all pitfalls in securing review have been avoided”). The provision was initially housed in Rule 52(b). In 2007, the Federal Rules of Civil Procedure were amended and the error-preservation provision was moved from Rule 52(b) to Rule 52(a)(5). See Edwards & Elliott at 201. However, the content of the provision was retained without material change. See Fed.R.CivP. 52, advisory committee’s notes (2007 amendments).
In reaching this conclusion, we follow the approach taken by the Second Circuit in Garcia. In that case, the appellate court reviewed a sentencing judge’s factual findings for clear error, even though one of the defendants had failed to challenge the findings below.
More than 20 years ago, the Supreme Court noted that “the ‘clearly erroneous’ standard of review long has been applied to nonguilt findings of fact by district courts in criminal cases.” Taylor,
Rule 52 makes clear that, in contrast to most questions raised on appeal, an appellate challenge to the sufficiency of the evidence supporting the factual findings on which a judgment or judgment on partial findings rests is not affected by a party’s failure to preserve the issue.
Plain error review is consequently inapplicable to review of such challenges.
EdwaRds & Elliott at 62-63.
To preserve a claim of error on appeal, a party typically must raise the issue before the trial court. See, e.g., Fed.R.Evid. 103(a); Fed.R.CrimP. 30(d); Fed. R.CrimJP. 51(b); Fed.R.Civ.P. 46; Fed.
In any event, the Supreme Court has made it plain that the clearly erroneous standard of review set forth in Rule 52 applies in both civil and criminal contexts. The exception to the error-preservation requirement now found in Rule 52(a)(5) is part of the standard and, therefore, we can discern no good reason to limit the exception to civil cases alone. Accordingly, we believe that the clearly erroneous standard governs an appellate court’s review of a sentencing judge’s factual findings, whether or not those findings have been challenged below.
Dissenting Opinion
dissenting:
Here we confront the proverbial question: which comes first — the chicken or the egg? Different intuitions lead to different conclusions. Thus, the court remands; while I would simply affirm.
If a district court found a defendant was born in May 1957, when, in fact, she was born two months earlier, we would not remand for the district court to correct its mistake unless on appeal the defendant explains how the factual error affected a legal conclusion. Nor would we remand if the district court made no age finding at all, unless the defendant spells out why that failure corrupted the legal analysis. An appellate court simply does not resolve questions of fact (or force a district court to make a factual determination) unless the answer to the factual question matters.
For a remand to be appropriate, Appellant needs two separate questions both to break his way: (1) whether the district judge was legally required to make a factual finding on participation; and (2) whether the district court did so. If the answer to Question (1) is “no” — that is, if the district court was not required to make a finding — then the answer to Question (2) is irrelevant.
The court only asks “whether the District Court judge made factual findings on appellant’s participation in the underlying
However it is resolved, determining § 2D1.8(a)(2)’s character is a purely legal question. Questions of law receive either de novo review (if objected to) or plain error review (if unobjected to). Haery T. Edwards & LiNda A. Elliott, Federal STANDARDS OF REVIEW — REVIEW OF DISTRICT Court Decisions and Agency Actions 5 (2007). Because Question (1) in this case was unobjected to, it ought to be reviewed for plain error. Instead, the court decides the legal question, asserting “[t]he plain language of’ § 2D1.8(a)(2) “requires a finding of such participation for the higher offense level in § 2D1.8(a)(l) to apply.” Maj. Op. at 846. Because there was no factual finding, the majority remands.
However, under the plain error standard that should be applied here, Appellant loses; this court has never resolved whether § 2D1.8(a)(2) sets the base offense level or is a mitigation provision, and in fact, as the majority observes but fails fully to credit, there is a circuit split on this very question. Compare United States v. Dickerson,
I respectfully dissent.