In U.S. v. Dowling, No. 04-10464 (March 23, 2005), the Court (Anderson, Pryor & Hill) affirmed a conviction and 240-month sentence for conspiracy to distribute cocaine.
The Court rejected a sufficiency of the evidence challenge, noting that there was "more than sufficient evidence" to support the jury’s verdict.
Turning to the challenge to the sentence, the Court found that no Booker error was preserved in the district court, because counsel did not preserve a "constitutional objection." The Court noted that counsel had noted that the jury’s special verdict only convicted the defendant of a 500 gram cocaine conspiracy. Counsel objected at sentencing that the jury verdict "under the unique facts and circumstances of this case, must be respected." The Court noted that the "unique facts and circumstances" had to do with the defendant’s statute of limitations defense, and that there was no reference to the Sixth Amendment, or citation to Apprendi, or challenge to the judge’s fact-finding authority. The Court noted that Fed. R. Crim. P. 51(b) requires a party to inform the judge not only of the action it wishes but the "grounds therefor."
Reviewing the issue for "plain error," the Court noted that "nothing in the record indicates that the judge might have imposed a different sentence in the new advisory regime." The Court recognized that the district judge expressed "some concern and an intellectual difficulty" with applying one Guideline enhancement – a cross-reference enhancement for murder – but pointed out that this enhancement made no difference in Dowling’s case, because the drug quantity and other enhancements would already have justified a sentence above the 120-month statutory maximum that was imposed. [Note : In Dowling, even though defense counsel at sentencing objected that a longer sentence shouldn’t be imposed because the jury’s special verdict on drug quantity "must be respected," the 11th Circuit found that the error in imposing sentence above the special verdict quantity wasn’t preserved, because counsel didn’t say something like "based on the Sixth Amendment," or "based on Apprendi." Yet, at the time of sentencing (pre-Booker, indeed, pre-Blakely) neither the Sixth Amendment nor Apprendi applied to Guideline enhancements. So the district judge would have been powerless to agree with a "Sixth Amendment" or "Apprendi" objection, even if it had been raised with the greatest clarity. One wonders if Dowling isn’t elevating form over substance. ]
