In U.S. v. Gibson, No. 04-14776 (Jan. 4, 2006), the Court (Tjoflat, Barkett, Mills b.d.), on a government sentencing appeal, held that the district court erred when it concluded that under Blakely v. Washington it could not classify Gibson as a career offender because the government did not prove to a jury the drug-trafficking nature of Gibson’s prior convictions.
The Court pointed out that the Supreme Court has not yet overruled Almendarez-Torres, which held that a judge could make findings at sentencing regarding a defendant’s prior convictions. "Though wounded, Almendarez-Torres still marches on and we are ordered to follow. We will join the funeral procession only after the Supreme Court has decided to bury it." The Court rejected the argument that deciding whether a prior conviction was a drug conviction involved a "qualitative characterization" which was not permitted under Almendarez-Torres. The determination involves an issue of law, which a judge should make. The Court distinguished United States v. Spell, 44 F.3d 936 (11th Cir 1995), which limited the circumstances under which a court could look outside the judgment of conviction to determine the nature of a prior conviction. The Court pointed out that there was no ambiguity in this case about the drug-trafficking nature of Gibson’s prior offenses, and Spell was therefore inapposite.
The Court noted that district court erred in calculating Gibson’s guideline sentence, because it failed to comply with § 4B1.1, which assigns offense level 37 to a career offender. Further, the district court erred in its departure decision based on overrepresentation of criminal history, because, on this basis, it could only depart downward one-level across the horizontal axis of the Guideline. Further, if the Court wished to depart further, on the vertical axis, on another "unguided" basis, it had to state this basis on the record. Finally, the Court also had to state on the record its basis for a post-Booker non-Guideline sentence reduction, which it did not do.
The Court therefore vacated the sentence and remanded for resentencing.
