                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                           REVISED JUNE 22, 2005
                                                                     June 6, 2005
                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                 Charles R. Fulbruge III
                                                                        Clerk

                               No. 03-30481



     UNITED STATES OF AMERICA,


                                               Plaintiff-Appellee,


           versus


     DONALD CRAIG SCROGGINS,


                                               Defendant-Appellant.



           Appeal from the United States District Court
               for the Western District of Louisiana



      ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

     In   this    direct   criminal   appeal   our   previous   disposition

appears in United States v. Scroggins, 379 F.3d 233 (5th Cir.

2004).    Scroggins, in October 2004, filed in the Supreme Court of

the United States a petition for writ of certiorari seeking to

review that disposition.       On January 24, 2005 the Supreme Court

entered an order therein stating that, on consideration of the
petition for certiorari and response thereto:

     “. . . Motion of petitioner for leave to proceed in forma
     pauperis and petition for writ of certiorari are granted.
     Judgment vacated, and case remanded to the United States
     Court of Appeals for the Fifth Circuit for further
     consideration in light of United States v. Booker, 543
     U.S. ____, 125 S.Ct. 738. ___ L.Ed.2d ___ (2005).”

The case is now again before us pursuant to that order of the

Supreme Court.

     Donald Scroggins was tried on two counts of a superceding

indictment.   Count one charged Scroggins and John Calvin Bryant

with conspiring with each other, and with other unnamed known and

unknown persons, from about October 1998 through about march 2001,

to possess with intent to distribute “five (5) kilograms or more of

cocaine hydrochloride (powder cocaine) and fifty (50) grams or more

of cocaine base (crack cocaine)” in violation of 21 U.S.C. §§ 841

and 846.   Count two charged Scroggins (alone) with distribution,

and aiding and abetting distribution, of cocaine powder on or about

November 15, 2000 in violation of 21 U.S.C. § 841(a)(1).           The jury

found Scroggins guilty on count one and not guilty on count two

(Bryant was found not guilty on count one).           Scroggins filed a

timely motion for new trial which the district court denied.

Thereafter,   on   April   24,   2002,   the   district   court   sentenced

Scroggins to life imprisonment and five years’ supervised release.



     On Scroggins’s timely appeal to this court, we remanded the

case to the district court for further consideration of Scroggins’s

                                     2
motion for new trial in the interests of justice.   United States v.

Scroggins, 379 F.3d 233 at 256-57, 269 (5th Cir. 2004).     We also

remanded to the district court to conduct an in camera inspection

of the presentence reports of two prosecution witnesses (Buchanan

and Byrd) – which reports Scroggins had requested pretrial – to

determine whether they contained any material Brady or Giglio

information and, if so, to determine whether the failure to produce

that information was harmless. Scroggins, 379 F.3d at 263-64, 269.

We rejected Scroggins’s other two challenges to his conviction.

Id. at 262-63, 269.

     At sentencing, the district court determined, at least largely

(if not entirely) on the basis of the trial testimony of government

witness Buchanan, that Scroggins’s conspiracy conviction involved

“more than 1.5 kilograms of crack cocaine,” id. at 265, found that

Scroggins had obstructed justice, id., and that he was dealer or

organizer of a drug organization with five or more participants,

which produced an unadjusted base offense level of 38 calculated

solely on the amount of crack cocaine, U.S.S.G. § 2D1.1(c)(1), to

which was added upward adjustments of four levels under U.S.S.G. §

3B1.1(a) for being a leader or organizer and of two more levels

under U.S.S.G. § 3C1.1 for obstruction of justice, for a total

adjusted base offense level of 43, which under the Guidelines

provides a guideline sentence of only life imprisonment for an

individual, such as Scroggins, in criminal history category I.


                                 3
U.S.S.G., Sentencing Table.1

     In his appeal to this court Scroggins argued, in his fourth

point of error, that Buchanan’s trial testimony “did not bear a

sufficient   indicia   of   reliability      upon     which   to   base   a   life

imprisonment   sentence,”     citing       U.S.S.G.    §   6A1.3    (sentencing


     1
        Actually, the adjusted base offense level would be 44, but
the U.S.S.G. Sentencing Table, application note 2, provides that
“[a]n offense level of more than 43 is to be treated as an offense
level of 43.”
     The applicable quantity of cocaine powder was not determined
by the district court. We observed, Scroggins at 265 n.56, that in
any event the amount thereof shown to be involved was “not close
to” 150 kilograms required under U.S.S.G. § 2D1.1(c)(1) to produce
an unadjusted base offense level (calculated solely on that drug’s
quantity) of 38 (or, with the noted upward adjustments, an adjusted
base offense level of 43). If the quantity of cocaine powder had
been “at least 50 KG but less than 150KG” then the unadjusted base
offense would have been 36 (U.S.S.G. § 2D1.1(2)) and the adjusted
base level would have been 42, producing a Guideline range of 360
months to life; if the quantity of cocaine powder had been “at
least 15 KG but less than 150 KG” then the unadjusted base offense
level would have been 34 (U.S.S.G. § 2D1.1(3)) and the adjusted
base offense would have been 40, producing a guideline range of
292-365 months.   If the quantity of crack cocaine had been “at
least 500 G but less than 1.5 KG” then the unadjusted base offense
level would have been 36, and the adjusted base offense level 42,
producing a guideline range of 360 months to life; if the quantity
of crack cocaine had been “at least 150 G but less than 500 G” then
the unadjusted base offense level would have been 34, and the
adjusted base offense level 40, producing a guideline range of 292-
365 months; if the quantity of crack cocaine had been “at least 50
G but less than 150 G” then the unadjusted base offense level would
have been 32, and the adjusted base offense level 38, producing a
guideline range of 235-293 months.
     21 U.S.C. § 841(b)(A)(ii) and (iii) provides for a statutory
range of punishment of “not less than ten years or more than life”
for drug trafficking involving 5 kilograms or more of cocaine
powder or 50 grams or more of cocaine base. For the next lesser
quantities, namely at least 500 grams of cocaine powder or at least
5 grams of cocaine base, the statutory sentencing range is “not
less than 5 years and not more than 40 years.”         21 U.S.C. §
841(b)(1)(B)(ii & iii).

                                       4
information must have “sufficient indicia of reliability to support

its probable accuracy”). This objection was raised in the district

court. Under this point of error, Scroggins’s principal contention

focused on the quantity of crack cocaine, although he also argued

that Buchanan’s testimony supporting the obstruction of justice

enhancement was unreliable (and he mentioned in passing, without

elaboration, that “Buchanan’s testimony also resulted in a four

level leadership enhancement”).          We rejected this contention as to

the   obstruction    of    justice     enhancement.          Scroggins   at    265.

However, as to the quantity of crack cocaine found, addressed in

part IV.D of our opinion (id. at 265-69), “[w]e conclude[d] that

the district court did not sufficiently scrutinize Buchanan’s

inconsistent statements and did not provide a rationale in the

record for believing one version over another . . . [and] did not

say   anything    about    the   differences       between      Buchanan’s    trial

testimony and the information Buchanan gave [agent Green] and of

which Green testified at sentencing.” Id. at 267-68. Accordingly,

“we remand[ed] the case for resentencing with respect to the

quantity of crack cocaine (and, should it become relevant, the

quantity of powder cocaine).”          Id. at 269.       In our conclusion, we

“vacate[d]    Scroggins’s    sentence       as    to   the   quantity    of   crack

cocaine” and remanded “for resentencing not inconsistent with this

opinion (Part IV.D hereof above).”               Id.   We pointed out that our

opinion, of      course,   did   not   contemplate       that    there   would   be


                                        5
resentencing thereunder “if the district court, pursuant to our

remand, first sets aside the conviction.”      Id. at 269 n. 16.

     We   rejected   Scroggins’s   three   other    challenges   to   his

sentence.   Scroggins, 379 F.3d at 269 n.62.       For the first time on

appeal he contended, in his fifth assignment of error, that “[f]or

the reasons set forth in United States v. Buckland, 259 F.3d 1157,

1163 (9th Cir. 2001), rev’d, 277 F.3d 1173 [9th Cir. 2002] (en

banc), cert. denied, 533 U.S. 1105 (2002) . . . § 841(b)(1)(A) is

unconstitutional in light of . . . Apprendi v. New Jersey, 530 U.S.

466 (2000).    As a result . . . Mr. Scroggins . . . should be

sentenced in accordance with . . . § 841(b)(1)(C).”         We rejected

that proposition, citing, inter alia, United States v. Fort, 248

F.3d 475, 483 (5th Cir. 2001).     Scroggins also contended, in his

sixth and final assignment of error, that his “sentence . . .

offends the due process clause . . . in that Mr. Scroggins was held

responsible for drug amounts representing a thirty fold increase in

the amount of cocaine base charged in the indictment,” without a

jury determination of the quantity of cocaine base in excess of

fifty grams. This contention was not raised in the district court.

We rejected that assignment of error, citing, inter alia, United

States v. Salazar-Flores, 238 F.3d 672, 673-74 (5th Cir. 2001).

Scroggins’s remaining challenge to his sentence was raised for the

first time in a supplemental brief filed in July 2004, in which he

argued that his sentence was unconstitutional because it was


                                   6
enhanced by drug quantities, leadership role, and obstruction of

justice, not found by the jury, relying on the reasoning of Blakely

v. Washington, 124 S.Ct. 2531 (2004).       He conceded that this

contention would have to be reviewed under the plain error rule, as

an objection on this basis was not made below.   Because Scroggins

did not file or seek to file this supplemental brief until nearly

two months after oral argument (and had not previously raised it in

this court, at oral argument, or in his opening brief, reply brief

or earlier supplemental briefs), we “decline[d] to address this

issue now,” noting that our order granting the motion to file this

supplemental brief stated that it did not determine that any issue

raised in the brief was properly or timely before us.     Id., 379

F.3d at 269-70 n.62.   We likewise noted that that issue was in any

event foreclosed by our decision in United States v. Pineiro, 377

F.3d 464 (5th Cir. 2004).

     Following the above noted remand for reconsideration in light

of Booker, we requested that the parties file supplemental letter

briefs with us stating their respective contentions as to the

proper course of action we should follow.

     In his post-remand brief Scroggins contends:

          “. . . in the event the District Court was to deny
     a new trial on the grounds identified in this Court’s
     earlier opinion . . . Mr. Scroggins submits that he could
     not then be resentenced under a sentencing guideline
     system that the United States Supreme Court found to be
     unconstitutional in Booker.     In short, Mr. Scroggins
     would be entitled to be resentenced in accordance with
     Justice Stephen’s [sic] merits opinion in Booker. . . .

                                 7
     . . .

          As to Justice Breyer’s remedy opinion in Booker, if
     a new trial was denied by the District Court on remand,
     Mr. Scroggins submits that at any resentencing the Due
     Process Clause would prohibit the District Court from
     imposing a sentence greater than that authorized by the
     jury verdict in the case. The clause prohibits courts
     from interpreting a law in such a way as to do indirectly
     what a legislature may not do directly, that is increase
     a defendant’s exposure to punishment beyond that which
     was authorized when the conduct occurred. . . . Here, Mr.
     Scroggins expected to be sentenced under mandatory
     sentencing guidelines consistent with his Sixth Amendment
     right to have those facts necessary to increase
     punishment to be proven beyond a reasonable doubt.
     Nevertheless, applying Justice Breyer’s remedial decision
     in Booker, which demoted the mandatory guidelines to
     advisory guidelines, to Mr. Scroggins, would strip Mr.
     Scroggins of his constitutional protections against ex
     post facto laws created by a judicial enlargement.”

     We reject that contention.       It is at the least implicitly

contrary to the holding in Justice Breyer’s Booker opinion that “.

. . we must apply today’s holdings – both the Sixth Amendment

holding and our remedial interpretation of the Sentencing Act – to

all cases on direct review.”    Booker, 125 S.Ct. at 769 (emphasis

added).   Scroggins’s case is still on direct review.   There is no

warrant for not applying Justice Breyer’s Booker opinion to this

case.   Moreover, Scroggins’s contention in this respect is plainly

inconsistent with our holdings in, for example, United States v.

Mares, 402 F.3d 511 (5th Cir. 2005) (No. 03-21035, March 4, 2004,

Slip Op. 1667), pet. for cert. filed March 30, 2005 (No. 04-9517),

and United States v. Holmes (No. 03-41738, 5th Cir. April 6, 2005,

Slip Op. 2160).   Each of those cases was a direct appeal from a

                                  8
conviction, following a jury trial, where the pre-Booker sentence

was based on guideline determinations depending on facts not found

by the jury.   We stated in Mares that

     “[Appellant] argues that he was deprived of his Sixth
     Amendment right to a jury trial because the sentencing
     judge enhanced his sentence under a mandatory Guidelines
     system based on facts found by the judge that were
     neither admitted by him nor found by the jury. Mares,
     however, did not object on this basis in the district
     court and our review is only for plain error.” Id., Slip
     op. at 1676.2

We went on to hold that there was error and that it was plain, but

that the appellant had not carried his burden of demonstrating

prejudice, stating:

     “. . . the error is the imposition of a sentence, which
     was enhanced by using judge found facts, not admitted by
     the defendant or found by the jury, in a mandatory
     Guideline system.

     . . . Since the error was using extra verdict
     enhancements to reach a sentence under Guidelines that
     bind the judge, the pertinent question is whether Mares
     demonstrated that the sentencing judge – sentencing under
     an advisory scheme rather than a mandatory one – would
     have reached a significantly different result.” Slip op.
     at 1677.

Similarly, we stated in Holmes (likewise a plain error review in a

jury tried case):

     “The precise Sixth Amendment error identified in Booker
     is not the use of extra-verdict enhancements that
     increase a sentence; the constitutional error is that


     2
        This is likewise the case here, there was no objection in
the district court that the sentence was based on facts not found
by the jury.    Nor (except as to drug quantity) was any such
objection made in this court (apart from the overly belated July
2004 post-argument supplemental brief).

                                 9
     extra-verdict enhancements      were   being    used   under
     mandatory guidelines. . . .

          Thus, in applying the third prong [of the plain
     error test], ‘the pertinent question is whether [the
     defendant] demonstrated that the sentencing judge –
     sentencing under an advisory scheme rather than a
     mandatory one – would have reached a significantly
     different result.’ [quoting Mares] . . . Absent some
     indication in the record that the outcome would have been
     different if the district court had been operating under
     an advisory system, a defendant fails to carry his burden
     of demonstrating prejudice and therefore that the error
     affected his substantial rights.” Id. at slip op. 2189.

     The government in its post-remand brief takes the position

that since we have ordered resentencing as to drug quantity, that

such resentencing should be pursuant to Justice Breyer’s opinion in

Booker.   We agree.    The government, however, also takes the

position that we previously found no error (nor insufficiency of

evidence) as to the guideline enhancements for leadership role or

obstruction of justice, and there is nothing to indicate that under

an advisory, rather than a mandatory, guidelines system the trial

judge would not have similarly enhanced the sentence, so as to

those aspects of the sentence Scroggins had not carried his burden

on plain error review of demonstrating prejudice and, accordingly,

there should be no resentencing as to them.         While we generally

agree with the government’s premises, we do not fully agree with

its ultimate conclusion in this respect as applied to the facts

here.

     Here, we have only a single sentence for a single offense.     If

the district court does not grant a new trial, pursuant to our

                                10
prior opinion, there will be a resentencing, at least as to

determination of drug quantity.        Justice Breyer’s Booker opinion

describes sentencing under an advisory (non-mandatory) guidelines

scheme, as follows:

     “Without the ‘mandatory’ provision, the Act nonetheless
     requires judges to take account of the Guidelines
     together with other sentencing goals. See 18 U.S.C.A. §
     3553(a) (Supp. 2004).     The Act nonetheless requires
     judges to consider the Guidelines ‘sentencing range
     established for . . . the applicable category of offense
     committed by the applicable category of defendant,’ §
     3553(a)(4), the pertinent Sentencing Commission policy
     statements, the need to avoid unwarranted sentencing
     disparities, and the need to provide restitution to
     victims, §§ 3553(a)(1), (3), (5)-(7) (main ed. and Supp.
     2004). And the Act nonetheless requires judges to impose
     sentences that reflect the seriousness of the offense,
     promote respect for the law, provide just punishment,
     afford adequate deterrence, protect the public, and
     effectively provide the defendant with needed educational
     or vocational training and medical care. § 3553(a)(2)
     (main ed. and Supp. 2004) . . .” Id., 125 S.Ct. at 764-
     65.

The standard of review of a sentence imposed under this “advisory”

system – at least assuming that the sentencing court did consider

such matters and did not err in its determination of what the

guidelines advised – is reasonableness.       While some or all of the

particular matters to be considered as above indicated apply to the

individual steps by which an overall sentence is arrived at, many

will apply, or also apply, to the ultimate sentence itself – or to

a distinct component of it such as the term of imprisonment –

particularly where the sentence is only for a single offense.

     Resentencing herein shall be pursuant to Justice Breyer’s


                                  11
Booker opinion, with Scroggins and counsel present and having,

inter alia, an opportunity to speak under FED. R. CRIM. P. 32(4)(A).

The district court may, should it deem it appropriate, reconsider

its determinations that Scroggins was a leader or organizer and/or

obstructed justice, as well as its drug quantity determinations,

and it shall evaluate the ultimate sentencing effect of any and all

such determination under an advisory, non-mandatory, guidelines

system.     We also note in this connection that in respect to all

these three determinations as made at the original sentencing, the

district court relied largely on the trial testimony of Buchanan.

The government in its post-remand brief states that:

     “. . . the case should be remanded in accordance with the
     Fifth Circuit’s previous opinion so that the government
     may establish with more certainty the types and quantity
     of drugs involved in defendant’s offense. The district
     judge will then have an opportunity, not only to hear and
     consider evidence with respect to amounts of drugs
     defendant was involved with, but also the issue of
     whether defendant should be granted a new trial.”

We hold that, under the particular circumstances of this case, the

district court may also, in its discretion, hear and consider

evidence as to Scroggins’s role in the offense under section 3B1.1

of the Guidelines and whether he obstructed justice under section

3C1.1 of the Guidelines.     The court may also hear evidence bearing

on whether or not – notwithstanding that the Guidelines (and

pertinent    Sentencing    Commission   policy     statements)   must    be

considered and taken into account – a non-guideline sentence would

be   more    appropriate   in   light   of   the    other   factors     and

                                   12
considerations set out in Justice Breyer’s Booker opinion.

     Accordingly     our   prior   disposition   is   modified   so   that

Scroggins’s sentence is VACATED and, if the district court does not

grant a new trial pursuant to our prior opinion, then Scroggins

shall be resentenced consistent with this opinion.         In all other

respects our prior disposition remains in effect.

                   SENTENCE VACATED; CAUSE REMANDED.




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