United States v. Solomon Coffey
Opinion of the Court
Solomon L. Coffey appeals from the sentence imposed on him following his conviction for conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 846. We affirm.
I.
The district court
II.
We conduct plain error review under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Pursuant to that test, before we can correct an error not raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If all three conditions are met, we may remedy the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
The district court’s enhancement based on drug quantity was erroneous in light of Booker because it was imposed on the basis of judge-found facts in a mandatory guidelines regime. In these circumstances, the first two Olano factors are satisfied. See Pirani, 406 F.3d at 550. Whether the error affected Coffey’s substantial rights is another matter. To satisfy this factor, “the defendant must show a ‘reasonable probability,’ based on the appellate record as a whole, that but for the error he would have received a more favorable sentence.” Id. at 552. Although the district court sentenced Coffey at the low end of the sentencing range, that is “the norm for many judges” and “is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” Id. at 553. Coffey argues in his supplemental brief that his personal circumstances (which he contends -include parenthood, engagement, and efforts toward rehabilitation) suggest that the district court would have imposed a lesser sentence. This argument is unavailing, particularly given the absence of any discussion of Coffey’s personal circumstances by the district court. Accordingly, we conclude that Coffey has not demonstrated prejudicial plain error.
The judgment of conviction is reinstated and the sentence is affirmed.
. The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.
. The district court also sentenced Coffey to 30 months’ imprisonment for violating the conditions of supervised release following the completion of his sentence for an earlier con
. Pirani makes clear that Coffey's objection to the sufficiency of the evidence was insufficient to preserve a Booker claim. See Pirani, 406 F.3d at 550.
Concurring Opinion
concurring.
I recognize we are bound by our circuit’s en banc decision in United States v. Pirani, 406 F.3d 543 (8th Cir. 2005), and therefore concur in the majority’s opinion. I write separately to underscore my view, as stated in my dissent in Pirani, that Coffey’s sentencing objection was sufficient to preserve his Sixth Amendment sentencing challenge. See Pirani, 406 F.3d at 555-62.
The Pirani majority opined that only specific objections, those in which the defendant explicitly mentions either the Sixth Amendment, Apprendi v. New Jer
In this case, Coffey objected to the district court increasing his mandatory guidelines sentence on the basis of the evidence before it, asserting that it was insufficient to establish any drug quantity. This is precisely what Justice Stevens’s majority opinion in Booker found to be problematic with the guidelines: that it was a system of mandatory sentencing in which a defendant’s sentence increased based on evidence never proven to a constitutionally acceptable standard of proof. Booker, 125 S.Ct. at 756. Still, according to the Pirani majority and the en banc court which returned Coffey’s case for plain error review, this type of objection is not enough.
So Coffey challenged his mandatory guidelines sentence in district court for essentially the same reason that the Booker court found the guidelines unconstitutional, yet that objection was not specific enough to preserve his Booker claim. Instead, the Pirani majority required Coffey to either cite a c&se-Blakely-th&t was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held by our court en banc to have no application to the guidelines. Where could such an absurd result stand? Justice Scalia might reply, “Only in Wonderland.” Booker, 125 S.Ct. at 793 (Scalia, J., dissenting).
Coffey did everything reasonably necessary to preserve his Sixth Amendment sentencing claim for our review. If not for our court’s decision in Pirani, I would adhere to our initial panel determination on this issue and allow the district court the opportunity to resentence Coffey under a constitutional sentencing regime.
. United States v. Booker, -U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Reference
- Full Case Name
- UNITED STATES of America, Appellee, v. Solomon L. COFFEY, Also Known as Solomon Murray, Also Known as Box, Appellant; United States of America, Appellee, v. Solomon L. Coffey, Also Known as Levell Coffey, Also Known as Levell Murray, Appellant
- Cited By
- 1 case
- Status
- Published