United States v. DewittUnited States v. Dewitt
*1 Before: BATCHELDER, GIBBONS and McKEAGUE, Circuit Judges .
McKEAGUE
,
Circuit Judge.
Defendant-Appellant Keith Dewitt pleaded guilty to one
count of conspiring to possess with intent to distribute in excess of one kilogram of heroin and in
excess of five kilograms of cocaine, one count of money laundering, and one count of making false
statements on federal income tax returns. The district court judge made a number of factual
determinations that increased Dewitt’s sentence under the United States Sentencing Guidelines
(“Guidelines”). Relying on the Guidelines, which were mandatory at the time of sentencing, the
district judge sentenced Dewitt to life imprisonment. Dewitt appealed and argued that his sentence
violated the Sixth Amendment. For the following reasons, we vacate Dewitt’s sentence and remand
for resentencing under
United States v. Booker
,
I. FACTUAL AND PROCEDURAL HISTORY
On September 9, 1998, Dewitt was arrested after a seven-count indictment was filed in the United States District Court for the Southern District of Ohio. In Count 1, Dewitt was charged with *2 conspiring to possess with intent to distribute in excess of one kilogram of heroin and in excess of five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846. In Counts 2, 3, 4, and 5, Dewitt was charged with money laundering offenses in violation of 18 U.S.C. § 1956(a)(1)(B)(i). In Counts 6 and 7, Dewitt was charged with making false statements on federal income tax returns in violation of 26 U.S.C. § 7206(1).
On September 10, 1998, Dewitt pleaded not guilty on all counts. Dewitt’s trial began on January 13, 2000. On January 13, 14, and 18, the government called various witnesses. On January 19, 2000, Dewitt pleaded guilty to Counts 1, 4, and 6 of the indictment. Pursuant to a written plea agreement, the government dismissed the other four counts in the indictment. The district court made an extensive inquiry of the defendant pursuant to Fed. R. Crim. P. 11(b) and accepted the plea.
A presentence investigation report (“PSR”) was prepared. The PSR recommended that Counts 1 and 4 should be grouped together pursuant to § 3D1.2(b) of the Guidelines and that Count 6 should be considered separately. Defendant faced a combined adjusted offense level of 42 under the Guidelines, based on the amount of drugs involved, a two point enhancement for use of a firearm in the offense, and a four point enhancement for Dewitt’s leadership role in the offense. The PSR also noted Dewitt’s prior state convictions, which placed him in the criminal history category I under the Guidelines. After a two point reduction for acceptance of responsibility, the PSR recommended that Dewitt receive a 300 month sentence on Count 1, 240 months on Count 4, and 36 months on Count 6, to run concurrently.
At the sentencing hearing on April 28 and 29, 2003, the government offered evidence to support the offense level calculations and the violence perpetrated by Dewitt during the drug conspiracy. The parties filed several post-hearing sentencing memoranda with the court. On *3 January 20, 2004, the district court issued a decision addressing Dewitt’s objections to the PSR. The court also issued two addenda to its order, where the court addressed issues related to defendant’s sentence. In essence, the court rejected Dewitt’s objections to the PSR and made a number of findings by a preponderance of the evidence, including findings as to the drug amount attributable to Dewitt and his leadership role in the conspiracy. On January 29, 2004, based on these findings, under the then-mandatory Guidelines, the district court sentenced Dewitt to life imprisonment on Count 1, 240 months on Count 4, and 36 months on Count 6, to run concurrently. Dewitt appealed to this Court “from the judgment entry imposing a sentence” on February 2, 2004.
II. ANALYSIS
Under
Booker
, the Guidelines are now advisory.
See United States v. Grenoble
, – F.3d –,
In this case, the defendant pleaded guilty to conspiring to possess with intent to distribute
in excess of one kilogram of heroin and in excess of five kilograms of cocaine in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846. The statutory sentencing range for such an offense is
between ten years and life imprisonment.
Id.
§ 841(b)(1)(A). In sentencing Dewitt to life
imprisonment, the district court treated the Guidelines as mandatory and relied on a number of
determinations that were not admitted in the guilty plea, including drug amounts, possession of a
firearm, and Dewitt’s leadership role in the offense. Our review is for plain error, as it does not
appear that Dewitt argued the advisory nature of the Guidelines before the district court.
See United
States v. Oliver
,
Under our recent jurisprudence interpreting
Booker
, the district court committed plain error
and defendant’s sentence violated his Sixth Amendment rights when the district court sentenced him
under the then-mandatory Guidelines, based on facts not admitted in his guilty plea.
See United
States v. Smith
, No. 04-3422,
III. CONCLUSION
For all the foregoing reasons, we VACATE defendant’s sentence and REMAND the case to the district court for resentencing in accordance with .
Notes
[1] The government, in the one-paragraph argument section of its initial appellate brief, argued
that defendant was not entitled to a resentencing based on
United States v. Koch
,