United States v. Marco D. Duncan

Citations: 381 F.3d 1070; 2004 WL 1838020Docket: 03-15315

Court: Court of Appeals for the Eleventh Circuit; August 18, 2004; Federal Appellate Court

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On February 20, 2002, Marco D. Duncan and co-defendants were indicted for conspiracy to distribute significant amounts of cocaine and cocaine base under 21 U.S.C. §§ 841 and 846, along with a criminal forfeiture count. Before trial, Duncan sought to suppress evidence from a vehicle search, but the district court denied this motion. His trial began on July 21, 2003, leading to a jury conviction on all charges, including a finding that the conspiracy involved five kilograms or more of cocaine. A bifurcated forfeiture proceeding resulted in a $340,000 forfeiture verdict against Duncan. He was sentenced to life imprisonment and ordered to forfeit $340,000 on October 10, 2003. 

Duncan appealed, raising multiple arguments regarding his conviction, sentence, and forfeiture, all of which were rejected without further discussion by the court. These included the denial of his suppression motion, enhancements for firearm possession and his role in the offense, and the specificity of the forfeiture count under the Fifth Amendment. The remaining argument centered on the jury's special verdict regarding cocaine powder, which Duncan claimed should have influenced the calculation of his base offense level. The district court determined that Duncan was aware of the conversion of cocaine into crack cocaine, affirming a base offense level of 38 rather than 34, as calculated under the Federal Sentencing Guidelines.

Duncan contended on appeal that the jury, not the district court judge, should determine the type and quantity of drugs involved in his conspiracy case. His argument referenced the Supreme Court's decision in Blakely v. Washington, which held that enhancing a sentence based solely on a judge's findings, without jury determination or admission by the defendant, violates Sixth Amendment rights. Duncan's appeal raised a similar argument regarding the determination of cocaine base involvement in the conspiracy. However, he did not present this Sixth Amendment challenge in the district court during trial or sentencing. His objections were limited to the sufficiency of evidence for the cocaine base finding, which did not constitute a constitutional objection. Consequently, the court's review of Duncan's case is confined to whether the judge's finding constituted plain error under the precedent set by Blakely. The plain error standard requires showing that (1) an error occurred, (2) it was plain, (3) it affected substantial rights, and (4) it undermined the fairness or integrity of judicial proceedings. The timing of the Blakely decision does not change the application of the plain error standard in Duncan's appeal.

To satisfy the second prong of the plain error analysis, the error must be "obvious" or "clear under current law." The court examines whether the Blakely decision applies to judicial fact-finding that enhances sentences under the Federal Sentencing Guidelines. It concludes that it is not obvious that Blakely invalidates such practices, as Blakely explicitly states it does not address the Federal Guidelines. There is significant disagreement among circuits regarding this issue, with some circuits, like the Seventh, Eighth, and Ninth, holding Blakely applicable to the Guidelines, while others, including the Fifth and Fourth, do not. The Second Circuit has also certified the question for the Supreme Court. Since the prior case of United States v. Curtis, two additional circuits have ruled that Blakely does not apply to the Guidelines. In the Eleventh Circuit, if neither the Supreme Court nor the circuit has resolved an issue amid a split among other circuits, the error is not considered "plain" or "obvious." Consequently, as the majority of circuits disagree with Duncan's assertion that Blakely applies to the Guidelines, Duncan fails to meet the second prong of the analysis. Additionally, a panel from the Eighth Circuit has held that it is obvious Blakely applies to the Guidelines, although this decision was vacated for en banc rehearing. The Eighth Circuit panel noted that while agreeing with the Fifth Circuit's caution against overruling Supreme Court precedent, it favored the majority view that Blakely applies due to the strong emphasis on the jury's role in that ruling.

The disagreement with the Pirani panel's dismissal of the Fifth Circuit's opinion is rooted in the belief that the Fifth Circuit's reasoning—that Blakely does not overturn longstanding Supreme Court precedent regarding the maximum sentence stated in the U.S. Code—is rational. Other circuits have diverged in their interpretations, with some asserting that Blakely indeed alters the established understanding. The Pirani panel overlooked the Fourth Circuit's en banc decision in United States v. Hammoud, which stated that Blakely does not apply to the Guidelines. Additionally, both the en banc Sixth Circuit and a Second Circuit panel, in cases decided after Pirani, have also held that Blakely does not pertain to the Guidelines. As such, the conclusion that Blakely obviously applies to the Federal Sentencing Guidelines is contested.

The argument that the error in this case was not obvious is supported by similarities to Edwards v. United States, where the Supreme Court dismissed challenges to a district court's sentencing findings. The Court clarified that statutory maximum sentences take precedence over higher sentences prescribed by the Guidelines when the statutory limits are applicable. Furthermore, the significant aspect of Blakely was its redefinition of the maximum applicable for Apprendi purposes, focusing on state sentencing guidelines rather than federal statutes. However, Edwards reaffirmed that the maximum under the U.S. Code is relevant for Sixth Amendment considerations, and despite being decided before Apprendi, it appears to support rather than contradict it. Apprendi noted that the Guidelines were not part of its consideration and referenced Edwards to reinforce its stance.

The court affirmed the judgment, sentence, and forfeiture from the district court regarding Duncan's case. It noted that while there was no argument made in Edwards about the maximums in the Guidelines being relevant for Sixth Amendment purposes, the court still rejected a Sixth Amendment challenge related to judicial fact-finding for a sentence below the statutory maximum. This precedent supports the conclusion that any error in Duncan's sentencing was not "clear" or "obvious." 

Duncan's appeal focused solely on the drug type issue under the Apprendi doctrine, neglecting to challenge two other enhancements (firearm and role enhancements), which he subsequently abandoned as they were not raised in his initial brief. The court reiterated that issues not timely raised are considered abandoned, citing case law. Additionally, in his supplemental brief, Duncan's mention of the other enhancements was vague and inconclusive, further indicating abandonment of those challenges. 

The excerpt also references ongoing legal uncertainty regarding the application of Blakely to the Federal Sentencing Guidelines, citing conflicting decisions among circuit courts. Notably, while the Eighth Circuit has vacated previous panel opinions on this matter for en banc rehearing, there remains significant disagreement on the applicability of Blakely, with some courts holding it does apply while others disagree.

Majority and dissenting opinions from the Fourth Circuit are pending, leaving the rationale undisclosed. The clarity of the opinion suggests that had the Supreme Court focused on sentencing Guidelines, some sentences for the Edwards petitioners, related to cocaine and crack, could have surpassed the Guidelines range applicable to a cocaine-only conspiracy. Details from the Brief for Petitioners and the Brief for the United States provide findings on drug type and quantity, base offense level, total offense level, Guidelines range, and imposed sentences for each petitioner. The decision regarding Duncan indicates that he does not meet the second prong of the plain error standard, leading to a refusal to evaluate the remaining prongs.