Pre-Booker Sentences In Drug & Gun Case Split Court

US v. Sullivan: Convolution, they name is Fourth Circuit. How's this for an opening paragraph:

PER CURIAM:

Pursuant to the following opinions of Judge Widener and Judge King, the convictions of the defendants are hereby affirmed, and their sentences are hereby vacated. Judge Widener’s opinion in these appeals, to the extent that it affirms the convictions of the defendants, is joined by Judge King and Judge Duncan. Judge King’s separate opinion, which agrees with the result reached by Judge Widener as to Sullivan’s sentence, but for different reasons, addresses the sentencing issues only, vacates both defendants’ sentences, and remands for resentencing. It is joined by Judge Duncan. Judge Widener agrees in the result reached by Judge King as to Sullivan’s sentence, but for the reasons expressed in his opinion. He dissents from Judge King’s opinion and the result there reached as to the sentencing of Campbell.

Sullivan and Campbell were tried a convicted of multiple counts related to a crack distribution conspiracy and related firearm offenses. Each defendant got a life sentence, imposed before Blakely and Booker were handed down. The district court reached the appropriate Guideline range to support those sentences via post-trial factfinding, particularly of drug quantity and that both defendants were responsible for two murders during the course of the conspiracy. Both Sullivan and Campbell appealed their sentences and convictions.

Writing, ostensibly, for the court, Judge Widener concluded that Campbell's sentence can be upheld, while Sullivan's must be vacated. As to Campbell, Widener concluded that while some Booker prohibited factfinding could produce his sentence, Campbell's status as a career offender also produced a Guideline range with a maximum sentence of life (the drug conspiracy count involved more than 50 grams of crack, so it had a statutory maximum of life as well). Therefore, because Campbell's sentence was within the Guideline range and statutory range supported by the jury's findings and was "reasonable," Campbell could not meet the plain error requirements of White or Hughes. Sullivan's sentence, on the other hand, was supported only by the district court's post-trial factfinding and thus must be vacated.

While Judge Widener's per curiam opinion spoke of "we" concluding that Campbell's sentence must be upheld, Judges King and Duncan disagreed, in a concurrence/dissent authored by King. In his concurrence, King avoids the question of whether Campbell's sentence was based on Sixth Amendment Booker error (i.e., Hughes error) by pointing out a fact overlooked by Widener - that Campbell (and Sullivan, too, for that matter) objected to the district court's post-trial factfinding under Apprendi at sentencing. Therefore, it wasn't plain error review that should control, but harmless error review of the so-called statutory Booker error. King concluded that the Government could not meet its burden of showing that the district court would have imposed the same sentence on Campbell or Sullivan under an advisory Guideline scheme. Therefore, both sentences required vacation.

On the topic of Sullivan and Campbell's convictions, the court was unanimous in rejecting their arguments. The court turned away Sullivan's sufficiency argument as to the firearm counts of which he was convicted and also rejected his claim that the district court should have given a multiple conspiracy instruction. Campbell's arguments, challenging the admissibility of co-conspirator statements and documents relating to their plea agreements were also rejected.