Court Applies Promise/Cotton Analysis to Sixth Amendment Booker Error; Distinguishes Hughes

US v. Smith: Smith, Reep, and Moore were all convicted of being part of a conspiracy to distribute drugs, as well as other offenses. In laundry list fashion, the Fourth Circuit affirmed their convictions, covering the following issues (none of Smith's arguments were directly addressed, although the Court admitted in a footnote that some claims "are so clearly without merit that they do not warrant discussion in this opinion"):

Moore

• Indictment was not unconstitutionally vague where is charged that one count of possession with intent to distribute occurred "in or about Winter, 2000."
• The district court properly admitted testimony of a witness regarding statements made by other unindicted coconspirators, concluding that those were members of the conspiracy and the statements were made in furtherance of that conspiracy.
• Admission of the testimony of Moore's son that he delivered drugs in DC for his father at six years of age did not violate Rule 404(b) and was therefore not plain error.
• The district court improperly excluded a defense witness from testifying after she violated a sequestration order by sitting in the courtroom for two days of the trial. The error was harmless, however.
• Remark made by prosecutor in closing argument regarding guilt of codefendants and witnesses (["t"he only difference is some who sat on that witness stand admitted it and those sitting at these two tables have not") was not plain error.

Reep

• Reep's conviction does not violate double jeopardy, where prior trial was aborted after jury selection due to problem with competency of Government witness where Reep asked the court for a mistrial.
• The district court did not improperly restrict his cross-examination of Government witnesses.
• The district court's sua sponte cutting off of Reep's counsel during cross examination and questioning of some witnesses from the bench did not violate Reep's right to due process.
• The district court did not abuse its discretion by forcing Reep's counsel to decide on the spot whether to call more witnesses or rest his case.
• The district court did not abuse its discretion by cutting Reep's counsel off during closing argument when he began to define reasonable doubt for the fourth time.

As to Moore's sentence, the Court began by noting that his sentence of life in prison is beyond the top of the applicable Guideline range supported by the facts supporting his conviction, in violation of Booker. However, the Court goes on to apply the holdings of Johnson v. US, 520 U.S. 461 (1997), and US v. Promise, 255 F.3d 150 (4th Cir. 2001)(en banc), that it would not notice the error where the evidence regarding the determinations at issue was "overwhelming" and "essentially uncontroverted."

For Smith's sentence, the Court deemed that there was no Sixth Amendment error because he was sentenced as a career offender and his sentence was therefore based on prior criminal history. As to Booker error, the Court held that Smith abandoned that argument by making it in this cursory fashion: "Smith's sentence exceeded the maximum sentence then authorized by the jury alone, in violation of Booker." That was "Smith's entire argument" and not sufficient to raise the issue under Rule 28(a)(9)(A) of the Rules of Appellate Procedure.

Reep was also sentenced as a career offender. The district court upheld his sentence.

District Judge Dever, sitting by designation, dissented on the issue of Moore's sentence. Judge Dever correctly points out that the Court's holding is contrary to United States v. Hughes, 401 F.3d 540 (4th Cir. 2005). He notes that after Hughes:

every panel publishing a Fourth Circuit opinion applying Hughes to a Booker Sixth Amendment violation raised for the first time on direct appeal has exercised its discretion at the fourth step of the plain-error analysis to notice the error, vacate the sentence, and remand for resentencing.