United States v. Taylor

Court Case Details
Court Case Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5028


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


DONALD TAYLOR,

Defendant - Appellant.

No. 08-5039


UNITED STATES OF AMERICA,

Plaintiff - Appellee,


v.


CEDRIC TAYLOR,

Defendant - Appellant.


Appeals from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:07-cr-00102-F-1; 5:07-cr-00102-F-2)


Argued: January 29, 2010

Decided: March 22, 2010


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, modified in part, and
remanded by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Motz and Judge Gregory joined.


ARGUED: Wayne Buchanan Eads, Raleigh, North Carolina; Marilyn G.
Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for
Appellants. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.

2

DAVIS, Circuit Judge:

Appellants Donald and Cedric Taylor were convicted on drug

trafficking and witness tampering charges and were sentenced

accordingly in the United States District Court for the Eastern

District of North Carolina. They now appeal their convictions

and sentences. Together, they assert that the district court

erred in (1) denying their motions for judgment of acquittal on

the witness tampering charge; (2) sentencing them to 240 months

on the witness tampering charge; and (3) failing to provide an

adequate explanation for their sentences. In addition, Cedric

Taylor alleges error in the district court’s admission of

laboratory reports without the testimony of the lab technician,

and Donald Taylor alleges error in the district court’s refusal

to apply a sentencing guidelines adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a). We conclude that

the district court provided an inadequate explanation of the

sentence imposed on Cedric Taylor. Accordingly, we vacate the

sentence and remand for further proceedings

as to him.

Furthermore, we find, as the government concedes, that the lower

court erred when it imposed 240-month sentences on the witness

tampering charge. In all other respects, for the reasons

explained within, we affirm.

3

I.

The Appellants were charged in a six-count superseding

indictment for conspiracy to distribute and possess with intent

to distribute more than 50 grams of crack cocaine, in violation

of 21 U.S.C. § 846 (Count One); distribution of more than 50

grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)

(Counts Two and Three) (Donald Taylor only); tampering with a

witness through threats of physical force, in violation of 18

U.S.C. § 1512(a)(2)(C) (Count Four); attempting to kill a

witness, in violation of 18 U.S.C. § 1512(a)(1)(C) (Count Five);

and attempting to kill a witness in retaliation, in violation of

18 U.S.C. § 1513(a)(1)(B) (Count Six). Donald Taylor pleaded

guilty to the drug counts (Counts One through Three) and not

guilty to the tampering counts (Counts Four through Six); Cedric

Taylor pleaded not guilty to all counts. The jury convicted

Donald Taylor on Count Four (witness tampering through threats)

and found Cedric Taylor guilty of Counts One (drug conspiracy)

and Four. The jury found both Appellants not guilty of Counts

Five and Six.

The district court sentenced Donald Taylor to 360-months of

imprisonment on the drug counts and 240-months imprisonment on

witness tampering, the sentences to run concurrently. The

district court sentenced Cedric Taylor to concurrent 240-month

terms of imprisonment on the drug and tampering counts. The

4

defendants filed timely notices of appeal

and

we have

consolidated the appeals. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 3742.

II.

In 2006, the Cumberland County Bureau of Narcotics and the

United States Drug Enforcement Administration launched a drug

distribution investigation in Fayetteville, North Carolina. The

investigation revealed that, along with others, Donald Taylor

ran a drug distribution ring in Cumberland County.

A.

The Appellants do not challenge the sufficiency of the

evidence as to their narcotics convictions; accordingly, we

briefly summarize that portion of the government’s proof. The

government’s principal trial witness was Bobby Bunnells, a drug

1

dealer and police informant.

He testified that in 2000, he began

1

Several other drug dealers and drug users testified at

trial. According to Thomas Hanson, between October 2003 and
March 2004, he sold cocaine or crack to Donald Taylor between 13
to 16 times and he always saw drug traffic at the Taylors’s
residence. Torrey Robinson testified that, between 2002 and
2005, he sold Donald Taylor cocaine and crack more than 20
times. He sold Donald Taylor drugs in front of Cedric Taylor’s
residence while Cedric was present. He also witnessed Cedric
Taylor sell drugs. Ronnie Bowman testified that he bought crack
from Donald Taylor several times, and sold Cedric Taylor
marijuana. Bowman also witnessed Cedric Taylor selling drugs.
Camilo Garza purchased crack from Donald and Cedric Taylor in
2005. Garza testified that lots of drug users stayed at the
Taylors’s residence and used drugs there.

5

to sell 300 to 500 pounds of marijuana per month. In 2001, he

met Donald Taylor, who had purchased a trailer home from

Bunnells’s father. That same year, Donald Taylor began to

purchase marijuana, and eventually (in 2003), cocaine and crack

cocaine from Bunnells. Bunnells supplied Donald Taylor with

crack cocaine on a weekly basis until the middle of 2004. During

drug deals at Donald Taylor’s trailer, Bunnells observed

significant traffic going to the Taylor residence to purchase

drugs. He saw buyers knock on the trailer door and request

crack, and he saw Donald Taylor’s girlfriend sell them crack.

Bunnells also witnessed Cedric Taylor assisting Donald Taylor in

his drug enterprise. He saw Cedric Taylor work the door at the

trailer, weigh the crack, and hand the crack to customers.

Bunnells stopped selling drugs to Donald Taylor in mid-2004

after he repeatedly saw police in the vicinity. When law

enforcement officers arrested Bunnells in 2006, Bunnells began

to cooperate in drug investigations as a confidential informant.

In this capacity, he sought to buy drugs from Donald Taylor.

Having been out of the drug trade for some time, Bunnells

employed his niece, Crystal Powell, to reconnect him with Donald

Taylor. Powell was an admitted crack addict; she spent time at

the Taylor residence in 2006 and early 2007, sometimes staying

with them and sometimes prostituting herself to them for drugs.

Powell facilitated contact between Donald Taylor and her uncle,

6

and Donald Taylor agreed to meet Bunnells and sell him crack.

Bunnells and Donald Taylor met on September 14, 2006, whereupon

Donald Taylor (who had no drugs readily available) took Bunnells

to another drug dealer’s residence, purchased two and a quarter

ounces of crack with $1400.00

supplied

to

Bunnells

by

investigators, and gave the crack to Bunnells when they arrived

back at Taylor’s residence. On October 23, 2006, Bunnells made a

second purchase, this time of four and a half ounces of crack (a

so-called “Big 8”) from Donald Taylor for $4000.00 in government

2

funds. Cedric Taylor was present during the second transaction.

B.

The witness tampering and attempted murder charges arose

from events occurring several months after the above-described

drug purchases by Bunnells from Donald Taylor. Based on the

following evidence, the government theorized that the Appellants

learned that Bunnells was cooperating with investigators and

undertook to kill him.

2

During the investigation, agents executed at least two

search warrants at properties controlled by the Appellants. On
August 4, 2006, they executed a search warrant at a trailer used
as a dope house, seizing an armored vest, a loaded gun, digital
scales, and fliers advertising the sale and distribution of
crack by Donald Taylor. On January 23, 2007, they executed a
search warrant at Donald Taylor’s residence. Both Donald and
Cedric were present when the warrant was executed. Agents found
the residence littered with drug paraphernalia. They also seized
firearms and ammunition.

7

Crystal Powell, Bunnells’s niece, spent significant time

with Donald and Cedric Taylor, staying overnight at their

trailer on many occasions, sharing meals with them, and doing

drugs with them. Of relevance to the witness tampering charges

against the Appellants, her testimony focused on one particular

night when she accompanied Cedric Taylor to meet a drug dealer

named Bobby Faircloth. She testified that during the meeting,

Faircloth repeatedly winked at Cedric Taylor and stated that the

trailer park was “hotter than a firecracker,” but that “as long

as you’re selling to the police, they can’t fuck with you.” J.A.

3

309.

3

Powell testified as follows:


We pulled up there and Buddy Faircloth was

sitting there in a van and looked at Cedric and he
winked his eye and he said three times in a row, he
said Velton’s Trailer Park is hotter than a
firecracker, he said, then he goes, but as long as
you’re selling to the police they can’t fuck with you,
and he winked his eye, and he said it three times in a
row, as long as you’re selling with the police they
can’t fuck with you and winked his eye. He done that
three times.

And then we left and got back to the trailer and

I think they started putting two and two equals four,
you know what I’m saying? [Donald Taylor] started
showing me some text messages from my uncle and I
think he realized what my uncle was doing.

And I’m not going to sit here and say, it looked

like I was doing it with my uncle because there was
times – there was money being borrowed and the whole
while my uncle was not allowed out of his yard at
eight o’clock, and even I didn’t even know that, but I
was being the middle person. They were coming back to

8

After speaking with Faircloth, Cedric Taylor returned with

Powell to the Taylors’s trailer. Soon after their arrival,

Donald Taylor showed Powell text messages from Bunnells —

messages that caused her to believe that he knew that Bunnells

was working with investigators. One text message concerned

Bunnells asking Donald Taylor to do another drug sale.

At approximately the same time that the Taylors showed

Powell the text messages, the Taylor brothers, their cousin “Big

G,” and a man named Harold Clark, each of whom was also at the

trailer, were saying things like, “all you have to do is pull

the trigger, pull the trigger.” J.A. 310. Powell also testified

that Donald Taylor indicated that he was willing to do “whatever

it took” to avoid jail, and that Harold Clark was walking around

the trailer with a gun, plastic handcuffs, and duct tape.

In due course, Donald Taylor instructed one of the men

present to take Crystal Powell from the trailer, noting that he

did not care what the man did with Powell, and requiring only

that he be informed of where he took her. The man dropped Powell

off near a friend’s residence, at her direction, and she called

Bunnells immediately and told him that his cooperation had been

exposed.

me, I was going to meet, and then bringing the money
back to them.


J.A. 309 (brackets added).

9

Bunnells testified that on the very next day, January 20,

2007, after a chance encounter near a car wash, Cedric Taylor

and another man engaged in a vehicle chase with Bunnells, firing

shots at Bunnells’s truck. Bunnells escaped by driving his truck

into a field, abandoning his vehicle, and fleeing into a wooded

area. Thereafter, Bunnells contacted the case agent and told him

about the incident, but did not identify Cedric Taylor as the

shooter until, a day or so later, he had sent his mother and

father out of town.

Bunnells took Powell to meet with investigators two days

later, and Powell advised them of what had transpired on the

4

night that she went with Cedric Taylor to visit Bobby Faircloth.

C.

The claim of trial error raised by Cedric Taylor relates to

evidence elicited from Agent Gary Owens of the Cumberland County

Bureau of Narcotics. Owens

testified about Bunnells’s

cooperation and, specifically, his purchase of crack cocaine

from Donald Taylor in September and October 2006. During Owens’s

4

The defense argued at trial that Bunnells had concocted

the story of the shooting. In support of that contention, Donald
Taylor presented the testimony of Christopher Crocker, a drug
dealer who had been incarcerated with Bunnells. Crocker
testified that Bunnells told him that he had lied to the
authorities about who shot-up his truck. According to Crocker,
Bunnells stated that he had told the authorities that Donald
Taylor was responsible, but in fact, Bunnells admitted to
Crocker, he had shot-up the truck himself. On cross-examination,
the government sought to impeach Crocker through evidence of his
own aborted plea agreement and his prior silence about Bunnells.

10

testimony, the prosecutor offered into evidence the laboratory

reports generated as a result of the tests performed on those

drugs. Neither counsel objected, and the district court admitted

the reports.

III.


As mentioned, prior to trial, Donald Taylor pled guilty to

the drug conspiracy and drug distribution counts and not guilty

to the three witness tampering, retaliation, and attempted

murder counts. At trial, the jury convicted him on the charge of

witness tampering by threat of force, but it found him not

guilty on the retaliation and attempted murder counts. The jury

found Cedric Taylor guilty of drug conspiracy and witness

tampering by threat of force and not guilty on the retaliation

and attempted murder counts.

The Appellants timely filed and renewed motions for

judgments of acquittal as to the witness tampering charge. The

district court denied the motions, finding specifically that the

evidence presented at trial was sufficient to support the jury’s

verdict that

the Appellants’ intent in threatening and

intimidating Powell was to intimidate and deter Bunnells from

communicating with the authorities about the Appellants’ drug

trafficking activities.

11

IV.

We first address the Appellants’ assertions of error in

connection with the denial of the motion for judgment of

acquittal as to the witness tampering charge and the admission

of the lab reports. We then address the sentencing issues they

raise.

A.

The first issue is whether the district court erred in

denying the Appellants’ motion for judgment of acquittal under

Fed. R. Crim. P. 29 as to the witness tampering charge. The

Appellants argue that the government failed to present

sufficient evidence for a jury to find beyond a reasonable doubt

that their threatening and intimidating behavior toward Powell

was intended to intimidate or threaten Bunnells and to deter him

from communicating with law enforcement. The Appellants contend

that any inference of such an intent is too attenuated and

speculative to support their convictions. They contend that the

only reasonable inference from the evidence is that they were

attempting to gain information about and/or confirmation of

Bunnells’s police connections. The government responds that

sufficient evidence supported the jury’s finding that

Appellants’ threatening and intimidating actions directly toward

Powell was intended to deter Bunnells and to cease his

cooperation and communication with investigators.

12

We review this claim de novo. See United States v. Ryan-

Webster, 353 F.3d 353, 359 (4th Cir. 2003). We must sustain a

guilty verdict that, viewing the evidence in the light most

favorable to the prosecution, is supported by “substantial

evidence.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996) (en banc) (quoting Glasser v. United States, 315 U.S. 60,

80 (1942)). “Substantial evidence” is “evidence that a

reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant's guilt beyond

a reasonable doubt.” Id. To that end, we “must consider

circumstantial as well as direct evidence, and allow the

government the benefit of all reasonable inferences from the

facts proven to those sought to be established.” United States

v. Cameron, 573 F.3d 179, 183 (4th Cir. 2009) (citation

omitted).

The statute under which the Appellants were convicted

prohibits, in relevant part, “us[ing or attempting to use]

physical force or the threat of physical force against any

person . . . with intent to . . . hinder, delay, or prevent the

communication by any person to a law enforcement officer . . .

of information relating to the commission or possible commission

of a Federal offense. . . .” 18 U.S.C.

§

1512(a)(2)(C)(alterations and emphases added). See generally

United States v. Harris, 498 F.3d 278, 283 (4th Cir. 2007).

13

Here, the Appellants do not argue that they did not threaten the

use of physical force against Powell, the “any person” referred

to initially in the statute. Instead, they argue that the

evidence failed as a matter of law to prove that they harbored

the requisite intent, i.e., that the evidence failed to

establish that they intended to “hinder, delay, or prevent”

Bunnells, the second “any person” referred to in the statute,

from

communicating

with law enforcement. We

reject

this

contention.

Intent is most often proved through inferences from

circumstantial and indirect evidence. This court has explained

that, “as a general proposition, circumstantial evidence may be

sufficient to support a guilty verdict even though it does not

exclude every reasonable hypothesis consistent with innocence.”

United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008)

(alteration

and quotation marks omitted). “Indeed, ‘[t]he

question of one’s intent is not measured by a psychic reading of

[the defendant’s] mind but by the surrounding facts and

circumstances; i.e., circumstantial evidence.’” United States v.

Bolden, 325 F.3d 471, 494 (4th Cir. 2003) (quoting United States

v. Larson, 581 F.2d 664, 667 (7th Cir. 1978)). In light of these

well established principles, the Appellants’ argument lacks

merit. The jury finding that the Appellants intended to “hinder,

delay, or prevent the communication by any person to a law

14

enforcement officer . . . of information relating to the

commission or possible commission of a Federal offense[,]” 18

U.S.C. § 1512(a)(2)(C), is properly supported by circumstantial

evidence and reasonable inferences drawn from that evidence.

Here, the Appellants learned (or strongly suspected) that

Bunnells was cooperating with investigators. The evidence showed

that up until that time, there was no indication that they had

acted in an intimidating or threatening manner toward Powell.

She was a frequent and welcome visitor, purchased and used drugs

in their presence, and often spent the night at their residence.

The sudden and immediate change in their behavior and attitude

toward Powell after the somewhat cryptic eye-winking and veiled

oral warnings by Bobby Faircloth during his meeting with Cedric

Taylor reasonably sheds light on the Appellants’ intent. During

the ensuing encounter back at the trailer, Donald Taylor stated

emphatically within Powell’s hearing that he was willing to do

“whatever it took” to avoid jail time. And, one man walked

around the trailer with a gun, handcuff ties, and duct tape, all

the while stating, “all you have to do is pull the trigger, pull

the trigger.” J.A. 310.

In sum, the circumstantial evidence reasonably supports the

inference that the Appellants’ actions and statements during the

encounter with Powell were intended to motivate Powell to advise

her uncle that his continued cooperation and communication with

15

law enforcement about the Appellants’ drug trafficking activity

5

would be dealt with violently.

Contrary to the Appellants’

contention, the inference of their intent was not speculative or

irrational. We hold therefore that the government presented

sufficient evidence to prove beyond a reasonable doubt that the

Appellants acted “with intent to . . . hinder, delay, or prevent

the communication by [Bunnells] to a law enforcement officer . .

. of information relating to the commission or possible

commission of a Federal offense.” See 18 U.S.C. § 1512(a)(2)(C).

The district court did not err in denying the motions for

judgment of acquittal.

B.

Cedric Taylor contends that the district court erred when

it admitted in evidence laboratory reports describing the

results of drug analyses without the sponsoring testimony of the

lab technician. He argues that admission of the lab reports

violated his rights under the Confrontation Clause as

interpreted by the Supreme Court in Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009). The government argues

that this claim has been waived by the failure of Cedric

Taylor’s counsel to lodge a contemporaneous objection to the

admission of the reports at trial and that this court should not

5

The indictment charged the Appellants with aiding and

abetting each other in the witness tampering counts.

16

notice “plain error” in the circumstances presented. We agree

with the government.

As there was no objection to the admission of the lab

reports, we review this claim for plain error. See Fed.R.Crim.P.

52(b); United States v. Olano, 507 U.S. 725, 732-35 (1993). As

we have explained:

Under plain error review, [Appellant] must show that
(1) the district court committed an error; (2) the
error was plain; and (3) the error affected his
substantial rights, i.e., that the error affected the
outcome of the district court's proceedings. United
States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770,
123 L.Ed.2d 508 (1993); United States v. Hughes, 401
F.3d 540, 547-48 (4th Cir. 2005). Even if [Appellant]
makes this showing, we should only notice the error if
the error “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Hughes,
401 F.3d at 555 (internal quotation marks and citation
omitted).

United States v. Perkins, 470 F.3d 150, 155 n.7 (4th Cir. 2006).

In this case, we have no hesitation in concluding that any

error in the district court’s admission of the lab reports did

not affect the outcome of the proceedings below. Cedric Taylor

has neither argued nor ever raised any issue at trial or in the

current appeal that the substances purchased by Bunnells from

Donald Taylor in September and October 2006 were anything other

than crack cocaine. Of course, Cedric Taylor was not charged

with substantive drug violations in connection with those

transactions. He was charged with knowing membership in a drug

trafficking conspiracy involving more than 50 grams of crack

17

cocaine. Consequently, Cedric Taylor’s sole claim on appeal is

that the admission of the lab reports prejudiced his right to a

fair trial by “documenting” that the weight of the crack cocaine

in those transactions totaled 168.8 grams (approximately six

ounces). See Appellants’ Br. 35 (Asserting that “admission of

the lab reports documenting 168.8 grams of cocaine base was

extremely prejudicial, as this was the only evidence of quantity

which appeared to be unquestionably reliable.”); id. at 36

(“Compared to the testimony of the assorted drug users and

dealers, the lab report must have seemed to the jurors to be

unimpeachable.”).

But this contention borders on the specious. The evidence

that the multi-year drug trafficking conspiracy charged in Count

One of the indictment involved more than a mere 50 grams of

crack cocaine was simply overwhelming. See supra note 1.

Furthermore, Bunnells fully described for the jury his purchases

of crack cocaine mentioned in the lab reports using government

funds, a total of $5,400.00 paid for approximately six and three

quarter ounces. Bunnells testified that at the second of the two

purchases, that of the “Big 8,” Cedric Taylor was present. In

short, the testimonial evidence shows conclusively that Cedric

Taylor was not prejudiced by the admission of the lab reports of

drug analyses admitted without objection during the testimony of

Agent Owens.

18

V.

The Appellants have raised three issues related to

sentencing. First, each argues that the district court committed

procedural error when it failed to explain adequately the bases

for the sentences it imposed. Second, Donald Taylor contends

that the court erred in failing to apply the acceptance of

responsibility adjustment at his sentencing. Finally, both

contend that the court erred in imposing a sentence of 240

months on the witness tampering conviction. We address these

assertions in turn.

A.

The Appellants argue that their sentences must be vacated

because the district court failed to explain, consonant with our

precedents, the bases for the sentences it imposed. The

government counters that the district court conducted an

individual assessment of Appellants’ cases and, in context,

adequately set forth its reasons for its sentences.

As we recently explained:

We have addressed claims of procedural sentencing

error in several recent cases. Relying on Supreme
Court guidance, we have held that for every sentence-
whether above, below, or within the Guidelines range-a
sentencing court must “place on the record an
‘individualized assessment’ based on the particular
facts of the case before it.” United States v. Carter,
564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552
U.S. at 50, 128 S.Ct. 586). But we have also held that
in explaining a sentencing decision, a court need not
“robotically tick through § 3553(a)'s every

19

subsection,” particularly when imposing a within-
Guidelines sentence. United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). “[A] major departure
[from the Guidelines] should be supported by a more
significant justification than a minor one,” Gall, 552
U.S. at 50, 128 S.Ct. 586, but an individualized
explanation must accompany every sentence. See United
States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009);
Carter, 564 F.3d at 330.

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).

Importantly, “in determining whether there has been an adequate

explanation, we do not evaluate a court’s sentencing statements

in a vacuum;” rather, “[t]he context surrounding a district

court’s explanation may imbue it with enough content for us to

evaluate both whether the court considered the § 3553(a) factors

and whether it did so properly.” United States v. Montes-Pineda,

445 F.3d 375, 381 (4th Cir. 2007).

1.

As to Donald Taylor, the district court fully heard defense

counsel’s arguments and allocution, and then it actually imposed

the exact sentence that defense counsel requested: a sentence at

the very bottom of the applicable guidelines range. Here is what

counsel stated to the court:

I’ve talked to Mr. Taylor about this, your Honor,

and I’m sure the court’s aware that when you start out
with a base offense level of 38, you’re automatically
dealing with an enormous sentence. You add some of the
offense characteristics we’re at in this case, and, of
course, it just goes up. I don’t know that really
anything else kind of matters. Any sentence that the
court would give Mr. Taylor is a phenomenal amount of
time in jail. I would submit to the court that a

20

sentence at the bottom of that range, still being a
phenomenal number, would be sufficient in this case to
address the purposes of sentencing.

J.A. 974 (emphasis added). We have reviewed the record and find

that counsel’s request was reasonable under the circumstances.

Although the district court said little to explain its own

reasons for agreeing with counsel’s assessment, under the

circumstances, that is, “in context,” not much needed saying.

Lynn, 592 F.3d at 580 (“[Appellant’s] attorney's arguments

before the district court urged that court only to impose a

sentence within the Guidelines range, which it did. Accordingly,

we must affirm.”). We discern no procedural error in the

sentencing of Donald Taylor.

2.

We reach a contrary conclusion with regard to the

sentencing of Cedric Taylor. During Cedric Taylor’s sentencing

hearing, the district court listened to defense counsel’s

arguments regarding Cedric Taylor’s age, education, lack of

criminal convictions, and his relationship with his co-defendant

brother. Defense counsel also argued that the evidence against,

and the apparent involvement of, Cedric Taylor, was slight in

comparison to that of his brother. Counsel urged the district

court to impose a ten year sentence, stating:

I would submit, your honor, that an appropriate

sentence as to Cedric Taylor would be the mandatory
minimum of 120 months; that the sentencing guidelines

21

is advisory, and you're not required to give him a
guideline sentence if the court is so inclined; that
based on the circumstances of his life, the facts that
were going on with his brother and his involvement in
these offenses that he's been accountable for, that
the mandatory minimum is the appropriate sentence and
ask that you give him 120 months.


J.A. 956-57. At the court’s invitation, the Assistant United

States Attorney responded to the above argument in this fashion:

[We] request, your Honor, a sentence within that

guideline range as found applicable by the court. Of
course, to vary downward the court must be able to
articulate reasons for such a variance. In this case,
the circumstances of the case rather than crying out
for a downward departure for this defendant I think
would do the opposite. It was a vicious case. It was a
violent case. Under the influence of his brother or
not, an appropriate sentence in this case would be
that found in that advisory guideline range.

J.A. 957. Then, again at the court’s invitation, counsel for

Cedric Taylor was given the final word, as follows:

If it was so bad, Mr. Donald Taylor was indicted

one year before his brother Cedric was. And if the
court can look at the file, only about a month before
Donald Taylor comes to trial is his brother indicted
for all of these heinous offenses that everyone had
known about. Basically the government inserted Cedric
Taylor's name into three or four counts of the
indictment. If they had all this knowledge--you've
heard the testimony of these witnesses: "I've been
debriefed half a dozen times and I never once
mentioned the name Cedric Taylor. "When was the first
time you mentioned his name? "A week before when we
were getting ready for trial." The discovery has three
places where Cedric Taylor's name is mentioned. One is
on the porch, one he gave a user amount of cocaine,
and one from Crystal Powell that says Cedric delivered
some undescript [sic] amount of cocaine. That's it.
And now he's going to get 20 years based on these
witnesses. One hundred and twenty (120) months is
sufficient in Cedric Taylor's case.

22


J.A. 958. The court then offered Cedric Taylor an opportunity

to speak and thereafter, immediately imposed a twenty year

sentence (slightly above the very bottom of the applicable

guidelines range of 235-293 months) as follows:

The court finds the basis for the findings

contained in the pre-sentence report credible and
reliable and therefore the court adopts those
findings. Based on those findings, the court has
calculated the imprisonment range prescribed by the
advisory sentencing guidelines and has considered that
range, as well as other relevant factors set forth in
the advisory guidelines, and those set forth in 18
United States Code, section 3553(a). Pursuant to the
Sentencing Reform Act of 1984, it is the judgment of
the court that Cedric Taylor is hereby committed to
the custody of the bureau of prisons to be imprisoned
for a term of 240 months on each count to be served
concurrently. Upon release from imprisonment, the
defendant shall be placed on supervised release for a
term of five years. This term consists of a term of
five years on count one and a term of three years on
count four, all such terms to run concurrently.


*

*

*

*

Inasmuch as the range exceeds 24 months, the

court has imposed a sentence near the bottom of the
range because there are no unaccounted for aggravating
factors and because of the defendant's lack of
criminal convictions.

J.A. 959-62 (emphasis added).

As the above excerpt from the Cedric Taylor sentencing

hearing shows, while the district court commendably allowed

counsel a full opportunity to make vigorous arguments to aid the

court in determining an appropriate sentence, the court never

explicated its reasons for imposing a twenty year sentence. The

23

court’s failure is especially striking in light of the non-

spurious bases identified in detail by counsel for a variance

sentence, to which the court never adverts. Certainly, the case

involved facts that might warrant a sentence within the

applicable guidelines range. Nevertheless, we are wholly unable

to assess the reasonableness of the sentence because the

district court failed to state the reasons for the sentence it

imposed.

The government’s reliance on the portion of the court’s

statement, which we have underscored, that “the court . . .

imposed a sentence near the bottom of the range because there

are no unaccounted for aggravating factors and because of the

defendant's lack of criminal convictions,” is unavailing. In

prefacing those remarks with the statement, “[i]nasmuch as the

range exceeds 24 months,” the court makes it clear that it is

complying with the statutory requirement that it state “the

reason for imposing a sentence at a particular point within the

6

[guidelines] range.” 18 U.S.C. § 3553(c)(1).

A district court’s

6

Section 3553(c)(1) provides as follows:

(c) Statement of reasons for imposing a sentence.—The
court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence, and, if the sentence--
(1) is of the kind, and within the range, described in
subsection (a)(4) and that range exceeds 24 months,
the reason for imposing a sentence at a particular
point within the range . . . .

24

explanation of its selection of a sentence within a sentencing

guidelines range, as required by 18 U.S.C. § 3553(c)(1), may

well provide, in an appropriate case, the “‘individualized

assessment’ based on the particular facts of the case before

it,” as required by Gall, 552 U.S. at 50, and Carter, 564 F.3d

at 330. The explanation provided here, however,

falls

considerably short of that standard.

Accordingly, for the reasons set forth, we vacate the

sentence imposed on Cedric Taylor

and we remand for

resentencing.

B.


Donald Taylor contends that, because he entered guilty

pleas to the drug conspiracy and drug distribution counts, the

district court erred when it refused to apply the acceptance of

responsibility adjustment pursuant to U.S.S.G § 3E1.1(a). In his

brief on appeal, Donald Taylor argues, in part, that the

adjustment clearly would be warranted if this court vacates his

conviction on the witness tampering charge. As explained above,

we affirm that conviction. But he also contends that, even if

the witness tampering conviction is affirmed, a two-level

reduction in the adjusted offense level is appropriate because

he: (1) pled guilty to all drug counts brought against him; (2)

18 U.S.C. § 3553(c)(1).

25

accepted responsibility for his “drug offense-related action;”

and (3) failed to challenge the presentence investigation

report, which included evidence of drug weights, admitted due to

“hearsay statements by potentially unreliable and non-credible

co-conspirators.”

The government argues that the district court did not err

in refusing to grant defendant an acceptance of responsibility

adjustment, in part because the drug counts and the witness

tampering counts were grouped in Donald Taylor’s guidelines

calculation. We agree. The grouping of the drug counts of the

indictment with the witness tampering count in the guidelines

computation dictates that, though Donald Taylor pled guilty to

the former counts, his conviction on the latter count precludes

application of U.S.S.G. §3E1.1. United States v. Hargrove, 478

F.3d 195, 200 (4th Cir. 2007) (“[U]nder the terms of U.S.S.G. §

3E1.1, the defendant must . . . accept responsibility for the

grouped guidelines counts in order to be eligible for the

reduction in offense level for that particular

offense.”)(internal quotations omitted);

United States v.

Garrido, --- F.3d ---, 2010 WL 653439 at *5 (9th Cir. Feb. 25,

2010) (“We join our sister circuits in holding that, where a

defendant accepts responsibility for all counts that are grouped

under U.S.S.G. §§ 3D1.1-3D1.5, that defendant is eligible for

the § 3E1.1 reduction for those counts, even if the defendant

26

has not accepted responsibility for other counts which, under §

3D1.1(b), are excluded from grouping.”)(citing Hargrove). Thus,

the district court did not err in declining to apply the

acceptance of responsibility adjustment in calculating Donald

Taylor’s guidelines.

C.

Finally, the Appellants contend that the district court

committed plain error when it imposed twenty year sentences on

the witness tampering convictions under

18 U.S.C. §

1512(a)(2)(c). Although neither defense counsel objected at

sentencing, the government agrees that at the time the

Appellants committed that offense in January 2007, the statutory

maximum penalty was ten years. (Congress amended the statute in

2008 to increase the penalty to a maximum of twenty years.) It

is clear in the record that the district court’s imposition of a

twenty year sentence was inadvertent. Cf. Weaver v. Graham, 450

U.S. 24, 28 (1981) (discussing ex post facto clause); Lynce v.

Mathis, 519 U.S. 433, 441 (1997) (same). Although there was

extensive discussion (and agreement) among the parties and the

magistrate judge who arraigned the Appellants that the maximum

potential sentence was ten years on the witness tampering charge

under § 1512(a)(2)(c), the pre-sentence investigation report

failed to flag the change for the district judge.

27

In any event, we agree with the government that, under the

circumstances, the error is amenable to correction as to Donald

Taylor by a simple revision to and reissuance of the judgment

and commitment order because the district court clearly intended

to impose the applicable statutory maximum sentence and to run

that sentence concurrently with the sentences on the drug

counts. Of course, as to Cedric Taylor, we have ordered a new

sentencing hearing. The district court shall correct its error

as to the sentence under § 1512(a)(2)(c) in connection with the

resentencing.

VI.

In conclusion, in appeal no. 08-5039, we affirm the

convictions and vacate the sentence imposed on Cedric Taylor and

remand with directions that a new sentencing hearing be held in

accordance with the views stated herein. In appeal no. 08-5028,

we affirm the convictions and modify the sentence imposed on

Donald Taylor as to indictment count four and remand with

directions that a revised judgment and commitment order be

entered in accordance with the views stated herein. In all other

respects, the judgments are affirmed.

AFFIRMED IN PART, VACATED IN PART,

MODIFIED IN PART, AND REMANDED

28

Referenced Cases