United States v. Thomas, (2nd Cir. 2008)

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04-6497-cr

United States v. Thomas

S.D.N.Y.

Stein, J.

01 Cr. 965

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CORRECTED SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY

ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GO VERNED BY THIS COURT'S

LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER

PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A

CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR

BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY

ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETH ER W ITH THE PAPER IN

W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL

UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS

PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY

O F TH E O RDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT

DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

the 17th day of April, two thousand eight,

PRESENT:

HON. BARRINGTON D. PARKER,

HON. RICHARD C. WESLEY,

Circuit Judges,

HON. MIRIAM GOLDMAN CEDARBAUM1

District Judge.

United States of America,

Appellee, No. 04-6497-cr

SUMMARY ORDER

-v.-

Rodney Thomas,

Defendant-Appellant.

FOR APPELLEE: Jonathan B. New, Karl Metzner, Assistant United States Attorneys, for Michael J. Garcia, United States Attorney for the Southern District of New York.

FOR DEFENDANT-APPELLANT: Cheryl J. Sturm, Chadds Ford, PA.

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED and the case is REMANDED to the district court with instructions to VACATE and RESENTENCE in conformity with Booker.

We assume the parties' familiarity with the underlying facts and procedural history of this case. Defendant-Appellant Rodney Thomas ("Thomas") appeals from the judgment of conviction entered by the United States District Court for the Southern District of New York (Stein, J.) after he pled guilty to one count of conspiracy to distribute and possess with intent to distribute PCP.

Thomas challenges the district court's application of a four-level sentence enhancement under U.S.S.G. § 3B1.1(a), which applies to "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." When we examine a district court's imposition of a Section 3B1.1 enhancement, "it is well established that we review its factual findings for clear error." United States v. Huerta, 371 F.3d 88, 91 (2d Cir. 2004) (per curiam). As to the district court's application of the guidelines to the facts, "we are to give `due deference' to the district court." Id. (citing 18U.S.C. § 3742(e)). However, "cases in this Circuit are not wholly consistent in expressing how much deference is `due' the district court's determination when reviewing the imposition of an aggravating role adjustment. Some apply a clear error standard . . . others review the adjustment de novo." United States v. Burgos, 324 F.3d 88, 91 (2d Cir. 2003) (citations omitted). We need not resolve this issue in this case because we would reach the same result under either standard.

The district court correctly applied Section 3B1.1(a) and supported the enhancement with sufficient findings. The record before the district court established that the PCP scheme involved more than five participants. Furthermore, the district court found specifically that Thomas "had a number of people working for him as is set forth quite explicitly on the call reports, the transcripts of which I reviewed for this sentencing. . . . He says that quite specifically in the phone calls, and I find that he is an organizer or a leader." The court also explicitly adopted the findings of fact in the presentence report ("PSR"), which further demonstrate Thomas's role as a leader or organizer in the scheme. See, e.g., United States v. Escotto, 121 F.3d 81, 85 (2d Cir. 1997) ("The district court is entitled to rely on the factual findings in the PSR, provided, however, that the court explicitly adopts them . . . .").

Although we find no error in the district court's application of the aggravating role enhancement, we nevertheless remand this case to the district court for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). In that case we found that remand for resentencing in conformity with United States v. Booker, 543 U.S. 220 (2005), is appropriate where a district court, operating pre-Booker, correctly calculates a sentence under the Sentencing Guidelines but erroneously treats the guidelines as compulsory, and a defendant preserves his objection to that error. Fagans, 406 F.3d at 142. The government concedes that "Thomas preserved his objection to the mandatory application of the Guidelines," and is thus entitled to a remand for resentencing consistent with the principles set forth in Booker.

For the foregoing reasons, we AFFIRM the judgment of conviction and REMAND this case to the district court with instructions to VACATE and RESENTENCE in conformity with Booker.

For the Court: Catherine O'Hagan Wolfe, Clerk By:

1 The Honorable Miriam Goldman Cedarbaum, of the United States District Court for the Southern District of New York, sitting by designation.

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