UNITED STATES of America, Plaintiff-Appellee, v. Robert D. BURKE, Defendant-Appellant.
No. 04-60973.
United States Court of Appeals, Fifth Circuit.
Dec. 2, 2005.
431 F.3d 883
[W]e are not convinced that Penry could be extended to cover the sorts of mitigating evidence [Petitioner] suggests without a wholesale abandonment of Jurek and perhaps also of Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (plurality opinion)]. As we have noted, Jurek is reasonably read as holding that the circumstance of youth is given constitutionally adequate consideration in deciding the special issues. We see no reason to regard the circumstances of [Petitioner]‘s family background and positive character traits in a different light. [Petitioner]‘s evidence of transient upbringing and otherwise nonviolent character more closely resembles Jurek‘s evidence of age, employment history, and familial ties than it does Penry‘s evidence of mental retardation and harsh physical abuse. As the dissent in Franklin made clear, virtually any mitigating evidence is capable of being viewed as having some bearing on the defendant‘s “moral culpability” apart from its relevance to the particular concerns embodied in the Texas special issues. It seems to us, however, that reading Penry as petitioner urges—and thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues—would be to require in all cases that a fourth “special issue” be put to the jury: “Does any mitigating evidence before you, whether or not relevant to the above [three] questions, lead you to believe that the death penalty should not be imposed?” ” The Franklin plurality rejected precisely this contention, finding it irreconcilable with the Court‘s holding in Jurek, and we affirm that conclusion today.
Graham v. Collins, 506 U.S. 461, 476-77, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (internal citations omitted).
Summers only contends that his evidence of good character could not be considered and given effect under the jury instructions used in his penalty phase. His position is foreclosed under our precedent in both Boyd and Barnard, which remain sound, and Coble, which relies on those cases. In light of this authority, habeas relief is denied.
IV. CONCLUSION
For the reasons stated above, the application for additional COAs is DENIED and the district court‘s denial of habeas relief is AFFIRMED.
Paul David Roberts, Asst. U.S. Atty.,
Thomas Constantine Levidiotis, Oxford,
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Robert D. Burke was convicted pursuant to a guilty plea of attempt to commit extortion under color of official right contrary to
FACTS AND PROCEEDINGS BELOW
Robert Burke, an Alderman for Holly Springs, Mississippi, was indicted for one count of conspiracy to aid in the distribution of more than five kilograms of cocaine, and five counts of attempt to commit extortion under the color of official right. Burke pleaded guilty to a single count of extortion (count two) under a plea agreement providing that the court would not sentence Burke to more than ten years’ imprisonment and that the remaining counts would be dismissed.
At Burke‘s plea colloquy, the prosecutor read nine paragraphs into the record to establish a factual basis for the plea. These nine paragraphs described a reverse-sting operation in which, on five separate occasions, Burke and his co-conspirators were paid money to provide a police escort for what they believed were shipments of 50 to 100 kilograms of cocaine. In fact, only a single 1 kilogram bag in each shipment contained real cocaine. The rest of the purported cocaine in these five shipments was fake.
This account was far more information than necessary to support Burke‘s guilty plea to extortion. However, after the prosecutor read these facts into the record, the court asked Burke, “[i]s there anything he said that you would disagree with?” Burke responded “No, sir, Your Honor.”
The pre-sentence report (PSR) assessed a base level of 10 pursuant to
But,
Burke had already admitted, during his plea colloquy, that the extortion was committed for the purpose of facilitating the commission of another criminal offense: aiding in the distribution of cocaine. So, as the PSR recommended, the sentencing court applied the section 2C1.1(c)(1) cross reference and, instead of the 20 levels calculated under section 2C1.1, the court assessed 38 levels for conspiracy to aid in the distribution of 500 kg of cocaine.1 After a few more adjustments, including a
DISCUSSION
I. Sentencing Based on Fake Cocaine
Burke argues that the sentencing court erred in considering fake cocaine in its drug quantity calculation. As a result, he contends that his sentence should be based on conspiracy to aid in the distribution of 1 kilogram of real cocaine, not 150 or more kilograms of mostly fake cocaine.
A. Standard of Review
The question presented here is, with respect to the crime of conspiracy to aid in the distribution of drugs, whether the sentencing court should include fake drugs in its drug quantity calculation. This is a legal question as to the interpretation and application of the sentencing guidelines which we review de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
B. Conspiracy and Fake Drugs
A defendant may not be convicted of the possession or sale of drugs unless the defendant possesses or sells actual drugs. See United States v. Bobo, 586 F.2d 355, 371 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979). However, factual impossibility does not preclude a conviction for conspiracy or attempt. See United States v. Pietri, 683 F.2d 877, 879 (5th Cir.1982). Because the act of conspiracy is complete upon the formation of an illegal agreement, a defendant can be convicted of conspiracy to aid in the distribution of drugs even if those drugs are fake. Id. (“The fact that the cocaine which they thought they were receiving was a fake substance does not affect their intent to obtain the genuine article.“). See also United States v. Murray, 527 F.2d 401, 411-12 (5th Cir. 1976) (upholding a conviction for conspiracy to distribute heroin even though it turned out to be lactose).
The question raised in Burke‘s objection is whether it follows that because a defendant can be convicted of conspiracy to distribute fake drugs, then a defendant‘s sentence for a drug conspiracy may be based on a quantity of fake drugs. We hold that a sentence for drug conspiracy may be based on fake drugs. We are guided in this respect by the commentary to
Accordingly, Burke‘s sentence for drug conspiracy is properly based upon the amount he agreed to escort. His crime was complete when he agreed to aid in the distribution of 350 kilograms of cocaine with the intent to achieve that objective.
II. Quantities That Were Part of the Dismissed Counts
Even if fake cocaine is properly included in the drug quantity calculation, Burke argues that the sentencing court erred in considering the entire 350 kilograms of cocaine, real and fake, admitted to during the plea colloquy. Instead, Burke argues, the district court should have considered only the 50 kilograms involved in count two, the count to which Burke pleaded guilty.
A. Standard of Review
The question of whether the sentencing court is limited to the quantity of drugs that provided the factual basis for conviction is a legal question concerning the interpretation and application of the sentencing guidelines that we review de novo. Villegas, 404 F.3d at 359. Because Burke objected to the PSR‘s consideration of the entire 350 kilograms of cocaine, our de novo review of the record is for harmless error. United States v. Ahmed, 324 F.3d 368, 374 (5th Cir.2003).3
B. Harmless Error
We conclude that the government has met that burden. At the Rule 11 hearing, Burke did not dispute that “[o]n July 6, 2001, as described in count two, Mr. Burke and others provided protection by providing an escort for a shipment of what was purported to be 50 kilograms of cocaine.” Thus, Burke has conceded that at least 50 kilograms of cocaine are relevant to his guilty plea.
A reduction in the quantity of cocaine from 350 kg to 50 kg would not have
This is not simply a case where the same sentence is included in both the incorrect and the correct sentencing ranges. See e.g., United States v. Lopez-Urbina, 434 F.3d 750, 2005 WL 1940118 (5th Cir.2005). In such cases, it is more difficult for the government to bear its burden of proving that “the district court would have imposed the same sentence absent the erroneous factor.” United States v. Tello, 9 F.3d 1119, 1131 (5th Cir.1993). Instead, in this case any alleged errors are moot because the defendant‘s sentence was determined entirely by only two independent factors: (1) The ten-year sentencing cap and (2) the downward departure for substantial assistance to authorities under section 5K1.1.
Neither of these two factors is influenced by the quantity of drugs (50 or 350 kg). The ten-year cap, if accepted by the court, functions without regard to drug quantity or to the severity of the sentence previously calculated. Furthermore, with respect to section 5K1.1, neither the considerations listed, nor the policy statement provided, suggest that the severity of the crime—here determined by the quantity of drugs—should influence the amount of the substantial-assistance reduction.5
C. Quantities of Cocaine
In any event, even if the consideration for sentencing purposes of more cocaine than the 50 kilograms involved in count two cannot be considered harmless, Burke would still lose. The sentencing guidelines provide that “[t]ypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level.”
“For example, where the defendant engaged in three drug sales of 10, 15, and 20 grams of cocaine, as part of the same course of conduct or common scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the defendant is convicted of a single count charging only one of the sales.”
Accordingly, the district court did not err by considering the entire 350 kilograms of cocaine that Burke admitted to
III. Abuse of Position of Trust
Burke argues that the sentencing court erred in applying a two-level sentence enhancement for abuse of a position of trust under
A. Standard of Review
The district court‘s application of section 3B1.3 is a sophisticated factual determination that we review for clear error. United States v. Partida, 385 F.3d 546, 562 (5th Cir.2004).
B. Abuse of a Position of Trust
Section 3B1.3 provides for a two-level enhancement “if the defendant abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.”
The district court ruled that Burke did abuse his position of trust both because city aldermen appoint the chief of police, and because Burke used his position to assist the police escort of drugs through his city. Burke‘s usefulness to the purported drug smugglers and his financial reward for escorting the drugs through his city, depended upon his position as alderman. The district court did not clearly err in assessing him a two-level increase for abuse of public trust.
IV. Booker Error
With respect to each of his above contentions, Burke also argues in this court that the district court committed Booker error by sentencing him in light of facts not directly relevant to his guilty plea and not found by a jury.
There is no support in the guidelines or in our case law for the argument that the court should consider only facts directly relevant to the elements of the offense charged. In fact, as discussed above, the guidelines explicitly advise the sentencing court to examine all relevant conduct, including facts external to the count of conviction.
Of course, if the court itself found those external facts,6 and they had not been admitted by Burke, he could have argued Booker on appeal. However, because Burke admitted all the relevant facts at his plea colloquy, he cannot rely on Booker here. The holding of Booker is “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005) (emphasis added). Burke‘s Booker argument is without merit.
CONCLUSION
For the foregoing reasons, the sentence of the district court is
AFFIRMED.