                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3673




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-3673
                                    ____________

                          UNITED STATES OF AMERICA


                                           v.

                                  MARK DOLBIN,

                                                     Appellant
                                    ____________

                     On Appeal from United States District Court
                       for the Middle District of Pennsylvania
                            District Court No.: 03-cr-0118
                       District Judge: Honorable Yvette Kane
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 25, 2007

          Before: CHAGARES, HARDIMAN and TASHIMA, * Circuit Judges.

                                 (Filed: July 3, 2007 )
                                    ____________

                             OPINION OF THE COURT
                                  ____________


HARDIMAN, Circuit Judge.


      *
         The Honorable A. Wallace Tashima, Senior Circuit Judge for the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
       Appellant Mark R. Dolbin (Dolbin) challenges his conviction and sentence.

Because we find no trial error, we will affirm Dolbin’s conviction. Nevertheless, we will

vacate Dolbin’s sentence and remand to the District Court for resentencing in light of

United States v. Cooper, 437 F.3d 324 (3d Cir. 2006), and United States v. Gunter, 462

F.3d 237 (3d Cir. 2006).

                                              I.

       Dolbin was indicted by a grand jury on five counts: (1) conspiracy to manufacture,

distribute and possess with the intent to manufacture and distribute methamphetamine

(21 U.S.C. § 846); (2) manufacture, distribution, and possession with the intent to

manufacture or distribute methamphetamine (21 U.S.C. § 841(a)(1) and (2)); (3)

possession of a firearm by an Armed Career Criminal (18 U.S.C. §§ 922(g)(1) and

924(e)); (4) obstruction of justice (18 U.S.C. § 1512(c)(1) and (2)); and (5) criminal

forfeiture (21 U.S.C. § 853(p)). The jury found Dolbin guilty on Counts 1-4 and the

District Court sentenced him to an aggregate term of life imprisonment. Dolbin filed this

timely appeal.

                                              II.

       Dolbin first argues that the evidence at trial was insufficient to support the guilty

verdicts on Counts 1 and 2, both of which relate to possession and intent to distribute

methamphetamine.




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       A court of appeals should “reverse a jury verdict for insufficiency of the evidence

‘only when the record contains no evidence, regardless of how it is weighted, from which

the jury could find guilt beyond a reasonable doubt.’” United States v. Mussare, 405 F.3d

161, 166 (3d Cir. 2005) (quoting United States v. Anderson, 108 F.3d 478, 481 (3d Cir.

1997)). We “must view the evidence in the light most favorable to the government and

must sustain a jury’s verdict if ‘a reasonable jury believing the government’s evidence

could find beyond a reasonable doubt that the government proved all the elements of the

offenses.’” United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997) (quoting United

States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)).

       Here, the government’s case against Dolbin relied upon the testimony of Roger

Frey, a separately indicted co-conspirator. According to Frey’s testimony, he and Dolbin

twice purchased large quantities of methamphetamine. As to the first purchase, Frey

testified that Dolbin expressed interest in acquiring inexpensive methamphetamine from

California. Frey testified that he traveled to California, where he contacted Dolbin and

informed him of the price of methamphetamine. According to Frey, he returned to

Pennsylvania and delivered four pounds of methamphetamine to Dolbin, who inquired as

to the whereabouts of the fifth pound that had been agreed upon. Frey testified that

Dolbin paid his travel expenses and an additional $4,000 for his troubles for this first trip

to California.




                                              3
       Frey also testified that he and Dolbin planned additional trips to California to

purchase methamphetamine. Frey stated that he made a “dry run” from California to

Pennsylvania using a Greyhound bus to assess police presence and that he and Dolbin

planned to meet to discuss the results of the “dry run.” Frey also testified that after

returning from his “dry run,” Dolbin paid for him to stay at the Holiday Inn Express in

Frackville, Pennsylvania, while Dolbin raised money for Frey’s next drug purchasing trip.

Frey testified that for that trip, Dolbin entrusted him with $55,000 with which to purchase

another five pounds of methamphetamine.

       In addition to Frey’s testimony, the jury heard from Drug Enforcement

Administration Special Agent John Langan, who testified that he witnessed Dolbin pick

up Frey at the Harrisburg bus terminal upon his second arrival from California, and that

Dolbin placed a sham package of methamphetamine into the trunk of a black Mercedes

Benz. Police then overheard Dolbin discuss cutting methamphetamine with Frey, which

prompted them to arrest Dolbin after a brief chase. Finally, James Conners, Dolbin’s

lifelong friend, testified that Dolbin called him from prison to discuss whether Conners

had successfully removed a scale and a rifle from Dolbin’s residence and concealed large

quantities of cash and methamphetamine.

      The aforementioned facts, when taken in the light most favorable to the

government, lead to the ineluctable conclusion that the jury was presented with ample

evidence from which it could have concluded reasonably that Dolbin was guilty beyond a



                                              4
reasonable doubt of Counts 1 and 2 of the indictment. Indeed, presuming that the jury

found Frey credible, his testimony alone would have been sufficient for the jury to have

convicted Defendant of these charges. Accordingly, we reject Dolbin’s third and fourth

assignments of error.

                                             III.

       Dolbin challenges his sentence as to Counts 1 and 2 because the indictment listed

the quantity of methamphetamine in the “Special Findings” section of the indictment,

rather than individually setting forth the quantity as to each count. Dolbin concedes that

because he did not object to this issue in the Court below, the issue is subject to plain

error review under Fed. R. Crim. P. 52(b). Under that standard, an error must be “plain”

and affect “substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002). An

error is “plain” if it is “clear” or “obvious” under “current law.” Johnson v. United

States, 520 U.S. 461, 467 (1997). An error “affect[s] substantial rights” if it “affected the

outcome of the district court proceedings.” Cotton, 535 U.S. at 631 (citation omitted).

       First, we note our agreement with Dolbin that Apprendi v. New Jersey, 530 U.S.

466 (2000), and United States v. Booker, 543 U.S. 220 (2005), require that a defendant

must be charged with all the elements of a crime. Dolbin also correctly notes that under

United States v. Lacy, 446 F.3d 448, 453 (3d Cir. 2006), the quantity of

methamphetamine is an element of a possession with intent to distribute crime. These

principles of black-letter law shed no light, however, on the question of where in the



                                              5
indictment the elements of the offense must be listed. Here, it is clear that the elements of

the offenses were listed in the “Special Findings” section of the indictment.

       Therefore, the failure to individually set forth the quantity of methamphetamine as

part of the charging sections of Counts 1 and 2 does not amount to plain error. That

failure is neither “clear under the current law,” nor does it affect Dolbin’s substantial

rights. In sum, Dolbin’s second assignment of error is rejected because the indictment

explicitly stated the elements of the crimes with which he was charged, tried, and

convicted.

                                             IV.

       Finally, Dolbin challenges the reasonableness of his sentence because the District

Court made no mention of the factors enumerated in 18 U.S.C. § 3553(a). The

government concedes that the District Court erred by not stating the reasons supporting

the sentence in open court. However, the government asserts that despite this error, the

sentence need not be vacated because: (1) the error does not amount to “plain error”; and

(2) the court explained its § 3553(a) reasons in a written judgment that was drafted the

same day as sentencing. But our decisions in Cooper and Gunter instruct that neither of

the government’s explanations cure the error.

       First, in Cooper we explained that Booker requires that all sentences be reviewed

for reasonableness. Cooper, 437 F.3d at 327. Therefore, despite the fact that Dolbin

failed to preserve this issue below, we review the sentence for reasonableness, not plain



                                              6
error. Second, in Cooper we held that the record below must demonstrate that the district

court gave “meaningful consideration” to the § 3553(a) factors. Id. at 329. We explained

that the “court need not discuss every argument made by a litigant if an argument is

clearly without merit . . . [n]or must a court discuss and make findings as to each of the

§ 3553(a) factors if the record makes clear the court took the factors into account at

sentencing.” Id. However, some level of consideration must be apparent from the record.

Id. Without that explanation of the court’s consideration, we have no basis upon which to

review the district court’s exercise of discretion. Id. (quoting United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) (relying on United States v. Johnson, 388

F.3d 96, 101 (3d Cir. 2004))).

       Following Cooper, in Gunter we held that at sentencing a district court must: (1)

calculate a defendant’s guideline sentence precisely as it would have pre-Booker;        (2)

formally rule on motions of both parties and state on the record whether the court is

granting a departure and how that departure affects the guidelines calculation, and take

into account pre-Booker case law, which continues to have advisory force; and

(3) exercise discretion by considering the relevant § 3553(a) factors. Gunter, 462 F.3d at

247. Finally, we note that the Supreme Court has recently instructed that “[t]he

sentencing judge should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal




                                              7
decisionmaking authority.” United States v. Rita, 2007 WL 1772146, at *12 (U.S. Jun.

21, 2007) (citation omitted).

       In Dolbin’s case, the only record of the District Court’s consideration of the

relevant § 3553(a) factors is a rote statement in a written judgment, without any insight

into the reasons for the District Court’s determination. Cooper and Gunter – both of

which were decided after the District Court imposed the sentence at issue – require more.

       For the foregoing reasons, we find that Dolbin’s first assignment of error has

merit, and therefore vacate his sentence and remand to the District Court for resentencing

consistent with Cooper and Gunter.




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