                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2006

USA v. Cabbagestalk
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1316




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"USA v. Cabbagestalk" (2006). 2006 Decisions. Paper 930.
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                                                                NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 05-1316

                           UNITED STATES OF AMERICA

                                             v.

                             MARVIN CABBAGESTALK,

                                            Appellant




                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              District Court No.: 04-CR-89
                     District Judge: The Honorable Alan N. Bloch


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 20, 2005

             Before: SMITH, BECKER, and NYGAARD, Circuit Judges*

                                  (Filed: June 9, 2006)


                                       OPINION


SMITH, Circuit Judge.

       In November of 2003, police officers in the City of Pittsburgh responded to a


  *
  This case was argued before the panel of Judges Smith, Becker and Nygaard. Judge
Becker died on May 19, 2006, before the filing of the Opinion and Judgment. The
Opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).
report that shots were fired in the direction of a residence by a bald, black man in a silver

car. The police apprehended the car and arrested Marvin Cabbagestalk, who fit the

description given by witnesses. A grand jury subsequently returned a one count

indictment against Cabbagestalk, charging him with unlawful possession of a firearm by

a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At a change of

plea hearing on September 29, 2004, the District Court conducted its Rule 11 colloquy

and specifically asked Cabbagestalk if he understood that the maximum penalty was ten

years imprisonment. Cabbagestalk replied in the affirmative. After the government

reviewed the evidence in support of the offense charged, Cabbagestalk affirmed that he

possessed a Bryco .38 caliber pistol, but he denied that he had discharged the firearm.

The District Judge accepted Cabbagestalk’s plea and directed that a pre-sentence report

(“PSR”) be prepared.

       The PSR indicated that Cabbagestalk discharged the weapon in the direction of a

residence, causing a witness “to dive for cover . . . .” In addition, the PSR represented

that two other witnesses claimed that Cabbagestalk had fired at them. In light of that

conduct, the PSR adjusted the base offense level of 20 under United States Sentencing

Guideline (“U.S.S.G.”) § 2K2.1 upward by four levels for the specific offense

characteristic of using the firearm in connection with another felony, namely, aggravated

assault. The adjusted offense level of 24 was reduced by three points for Cabbagestalk’s

acceptance of responsibility, yielding a total offense level of 21. Because


                                             2
Cabbagestalk’s criminal history category was IV, the resulting sentencing guideline

range was 57 to 71 months. Without the four level adjustment, Cabbagestalk’s

sentencing range would have been 37 to 46 months.

       Prior to sentencing, Cabbagestalk objected to the four level adjustment pursuant

to U.S.S.G. § 2K2.1(b)(5). He argued that whether he had discharged the firearm was a

fact that had to be proven beyond a reasonable doubt in accordance with Blakely v.

Washington, 542 U.S. 296 (2004). As additional support for his position, Cabbagestalk

attached the respondent’s brief from the pending appeal before the Supreme Court in

United States v. Fanfan. See United States v. Booker, 543 U.S. 220 (2005) (resolving

the writs of certiorari filed by Booker and Fanfan). The government argued that

Cabbagestalk’s position lacked merit.

       On January 12, 2005, the Supreme Court issued its decision in United States v.

Booker, 543 U.S. 220 (2005). Two weeks later, the District Court conducted

Cabbagestalk’s sentencing hearing. Cabbagestalk asserted that the District Court’s

findings at sentencing had to be proven beyond a reasonable doubt. He renewed his

objection to the four level adjustment under U.S.S.G. § 2K2.1(b)(5) and urged the

District Court to impose a sentence at the lower end of his guideline range. When

neither party offered additional evidence, the District Court adopted the findings of the

PSR. After affording Cabbagestalk his right of allocution, the District Court cited

Booker and declared that the “advisory guidelines do not reach the proper sentence . . . .”


                                             3
As support for its conclusion, the District Court explained that the

       suggested guideline sentence range does not sufficiently reflect the
       seriousness of the defendant’s offense, nor would a sentence within that
       range sufficiently promote respect for the law, provide just punishment for
       the offense, or afford adequate deterrence to criminal conduct, or protect
       the public from further crimes by this defendant.
               The defendant did not merely possess a firearm, but actually
       engaged in the drive-by shooting, whereby, he fired the gun at three
       persons from his car on November 2, 2003. Therefore, the real conduct in
       this case is much more serious than the mere possession of a firearm by a
       convicted felon and is not adequately addressed by the relative [sic] minor
       four-level adjustment under Section 2K2.1(b)(5) of the guidelines.

The District Court further explained that the sentence was “necessary to reflect the

seriousness of the real conduct underlying this offense and to provide just punishment

for the offense.” In addition, the Court noted that the defendant had a “history of

violence, culminating in the present offense, both as a juvenile and as an adult,” as well

as a history of unlawfully using weapons. Instead of imposing a sentence within the

guideline range of 57 to 71 months, the District Court imposed a sentence of 120

months, i.e., the statutory maximum of ten years. See 18 U.S.C. § 922(g)(1) and

924(a)(2). This timely appeal followed.1

       Cabbagestalk argues that the District Court erred in several respects: (1) by failing

to provide him with notice of its intent to depart upward from the advisory Sentencing

Guideline range as required by Burns v. United States, 501 U.S. 129 (1991), and Federal


  1
    The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See also United
States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

                                             4
Rule of Criminal Procedure 32; (2) in not applying the reasonable doubt standard to the

findings of fact that it used to increase his sentence beyond the advisory guideline range;

(3) by imposing, based upon a development in the law after the commission of his

offense and in violation of the Due Process Clause, a sentence greater than the

mandatory sentencing guideline range in effect at the time he committed the offense

charged; (4) by relying, despite the instruction provided by the Supreme Court in

Crawford v. Washington, 541 U.S. 36 (2004), at sentencing on information contained in

the PSR even though the witnesses were not cross-examined; and (5) by imposing an

unreasonable sentence contrary to Booker.

       The government concedes that the District Court erred by not providing

Cabbagestalk with the required notice of its intent to depart and “urges [us] to exercise

[our] supervisory authority to direct the district courts to give the parties notice and an

opportunity to respond when considering a variance from the advisory sentencing

guideline range.” It contends, however, that we need not remand because the error was

harmless inasmuch as Cabbagestalk has not demonstrated that “he would have done

things differently had notice been given.” United States v. Himler, 355 F.3d 735, 742

(3d Cir. 2004). In light of the government’s concession, we need not determine whether

a district court is legally required to provide notice that it intends to depart above the

advisory guideline range on an unidentified ground. Because Cabbagestalk’s counsel

has explained that he would have conducted additional factual investigation and prepared


                                              5
additional legal argument on the method to be employed in departing upward, we

conclude that the error is not harmless. For that reason, we will vacate the District

Court’s judgment and remand this matter for resentencing.

       Because we will vacate the District Court’s judgment, we need not address the

reasonableness of the District Court’s sentence. Based on the Supreme Court’s

instruction in Booker, we reject Cabbagestalk’s argument that the reasonable doubt

standard must be applied to the facts considered by a sentencing judge.

       In Booker, Justice Breyer determined that the remedy for the Sixth Amendment

violation was to excise the two provisions of the Sentencing Reform Act of 1984, as

amended, that made the guidelines mandatory. 543 U.S. at 245. He explained at length

why the Sixth Amendment reasonable doubt requirement was not being superimposed

onto the sentencing statutes. 543 U.S. at 247-58. Indeed, in Justice Stevens’ opinion in

Booker, he acknowledged that if the guidelines were advisory instead of mandatory,

then “their use would not implicate the Sixth Amendment,” and he confirmed that “when

a trial judge exercises his discretion to select a specific sentence within a defined range,

the defendant has no right to a jury determination of the facts that the judge deems

relevant.” Booker, 543 U.S. at 233.

       Consistent with this instruction, we declared in United States v. Cooper, 437 F.3d

324, 330 (3d Cir. 2006), that “[a]s before Booker, the standard of proof under the

guidelines for sentencing facts continues to be preponderance of the evidence.”


                                              6
Accordingly, the District Judge did not err by failing to determine the applicable

sentencing factors beyond a reasonable doubt.

       Cabbagestalk also argues, for the first time, that the Sixth Amendment does not

allow the government to prove its case with testimonial witness statements that were not

subject to cross-examination. Appellant’s Br. at 24 (citing Crawford v. Washington, 541

U.S. 36 (2004)). Assuming that Cabbagestalk’s single paragraph was sufficient to raise

this issue for review, we review for plain error. Fed. R. Crim. P. 52(b). We find no

error, plain or otherwise.

       In United States v. McGlory, 968 F.2d 309, 347 (3d Cir. 1992), we declared that

the “Sixth Amendment’s confrontation clause does not apply to sentencing hearings and

reliable hearsay is generally admissible.” Id. (citing United States v. Kikumura, 918 F.2d

1084, 1099-1100 (3d Cir. 1990)). The Supreme Court’s decision in Crawford did not

erode this principle because Crawford concerned only the use of uncross-examined

testimony at trial. 541 U.S. at 42. Crawford’s sentence was not at issue.

       Because Crawford concerned only trial testimony, we reject Cabbagestalk’s

invitation to extend Crawford and apply it to sentencing hearings. We cannot ignore the

Supreme Court’s decision in Williams v. New York, 337 U.S. 241 (1949), which held that

the consideration of information supplied by witnesses at sentencing who were not

subject to cross examination did not violate the Due Process Clause. Id. We note that

none of our sister Courts of Appeals that have addressed the issue have been willing to


                                            7
expand Crawford’s reach either. See United States v. Chau, 426 F.3d 1318, 1323 (11th

Cir. 2005) (refusing to apply Crawford to sentencing hearing); United States v. Luciano,

414 F.3d 174, 179 (1st Cir. 2005) (pointing out that Crawford concerned hearsay at trial

and that it would not alter its conclusion that “there is no Sixth Amendment

Confrontation Clause right at sentencing”); United States v. Roche, 415 F.3d 614, 618

(7th Cir. 2005), cert. denied, 126 S.Ct. 671 (2005) (explaining that the “relevant

provision at sentencing is the due process clause, not the confrontation clause” because

witnesses at sentencing are not accusers); United States v. Martinez, 413 F.3d 239, 243

(2nd Cir. 2005) (rejecting defendant’s invitation to reconsider the applicability of the

Confrontation Clause in light of Crawford).

       Finally, we consider Cabbagestalk’s contention that his due process rights under

the Fifth Amendment were violated by the retroactive application of the Supreme

Court’s decision in Booker, which exposed him to punishment under the statutory

maximum of ten years instead of the lower guideline range applicable under a mandatory

sentencing scheme. In Rogers v. Tennessee, 532 U.S. 451 (2001), the Supreme Court

considered the constitutionality of the retroactive application of a judicial decision which

permitted the defendant to be charged with murder. The Court recognized that the Ex

Post Facto Clause did not govern the issue because it applied only to legislative acts.

Nonetheless, it reiterated that the limitations of that Clause “are inherent in the notion of

due process.” Id. at 456. As a result, the constitutionality of the retroactive application


                                              8
of a judicial decision rests “on core due process concepts of notice, foreseeability, and in

particular, the right to fair warning . . . .” Id. at 459. A judicial decision “violates the

principle of fair warning, and hence must not be given retroactive effect, only where it is

unexpected and indefensible by reference to the law which had been expressed prior to

the conduct in issue.” Id. at 462 (internal quotation marks and citation omitted).

       In United States v. Pennavaria, __F.3d __, 2006 WL1061956 (3d Cir. 2006), we

applied Rogers’ principles to a similar challenge by a defendant who opposed a remand

for resentencing under Booker. Pennavaria argued that retroactive application of Booker

would expose him to a maximum statutory sentence of twenty years per count, as

opposed to a mandatory guideline sentence of forty-six months. We explained that

       Pennavaria’s ex post facto argument fails for two reasons. First, the
       Supreme Court in Booker clearly instructed that both of its holdings should
       be applied to all cases on direct review. Second, Pennavaria had fair
       warning that participating in a money laundering conspiracy and engaging
       in substantive money laundering was punishable by a prison term of up to
       20 years under 18 U.S. C. § 1956(a). Pennavaria also had fair warning that
       his sentence could be enhanced based on judge-found facts as long as the
       sentence did not exceed the statutory maximum. For these reasons, we join
       the other Courts of Appeals . . . and hold that application of Booker’s
       remedial holding to cases pending on direct review does not violate the ex
       post facto principle of the Due Process Clause.

Id. at __, 2006 WL 1061956 at *4 (citation omitted). Because Pennavaria governs

Cabbagestalk’s ex post facto claim, it too fails.

       For the reasons set forth above, we will affirm Cabbagestalk’s conviction, we will

vacate his sentence, and we will remand for resentencing so that defense counsel has an


                                               9
opportunity to prepare in light of the District Court’s intent to depart upward beyond the

advisory guideline range.
