US v. Mantel Mubdi

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cr-00051-RLV-DCK-1. Copies to all parties and the district court/agency. [999181109].. [10-5008]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5008

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MANTEL DELANCE MUBDI,
Defendant – Appellant.

On Remand from the Supreme Court of the United States.
(S. Ct. No. 12-7398)

Submitted:

July 26, 2013

Decided:

August 27, 2013

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
ON BRIEF: Claire J. Rauscher,
Executive Director, Kevin A. Tate, Assistant Federal Defender,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mantel Delance Mubdi entered a conditional guilty plea to
conspiracy to distribute and possess with intent to distribute a
quantity

of

cocaine

and

at

least

50

grams

of

cocaine

base

(“crack cocaine”), in violation of 21 U.S.C. § 846, possession
with intent to distribute a quantity of cocaine and at least 50
grams of crack cocaine, in violation of 21 U.S.C. § 841, and two
firearms

offenses

not

at

issue

here.

Although

the

Fair

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.
2372, went into effect prior to Mubdi’s sentencing, the district
court sentenced him to a total of 300 months’ imprisonment in
accordance with pre-FSA law.

On appeal, this court affirmed the

district court over Mubdi’s objection that the district court’s
use of judicial factfinding to find facts that increased the
mandatory

minimum

Amendment rights.
(4th Cir. 2012).

sentence

violated

his

Fifth

and

Sixth

United States v. Mubdi, 691 F.3d 334, 344-45
The Supreme Court granted Mubdi’s petition for

writ of certiorari, vacated this court’s judgment, and remanded
for further consideration in light of Alleyne v. United States,
133 S. Ct. 2151 (2013).

Because of intervening changes in law,

we vacate Mubdi’s sentence and remand to the district court for
resentencing.

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I.
The

presentence

investigation

report

(“PSR”)

responsible for 290.5 grams of crack cocaine.
prior

felony

drug

conviction,

Mubdi

found

Mubdi

Because of a

faced

a

mandatory minimum sentence under pre-FSA law.

twenty-year

Mubdi did not

object to the PSR’s finding that the crime involved 290.5 grams,
but he did argue that the FSA governed his sentence, and that
under the FSA the district court had the authority to impose a
sentence of less than twenty years.

The government argued that

it was irrelevant which law applied because Mubdi was in fact
responsible for 290.5 grams of crack cocaine--enough to trigger
a twenty-year mandatory minimum under either law.

The district

court rejected Mubdi’s argument and sentenced him to concurrent
twenty-year sentences for the narcotics offenses. *
For
district

the

first

court

also

time

on

appeal,

violated

his

Mubdi
Fifth

contended
and

Sixth

that

the

Amendment

rights by increasing the mandatory minimum sentence he faced
based on the 290.5 grams the district court found Mubdi actually
possessed, rather than the 50 grams to which Mubdi admitted.

If

the court had used 50 grams to determine the mandatory minimum,
*

Mubdi also received a concurrent ten-year sentence for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1), and a consecutive five-year sentence for
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c).

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Mubdi would have faced a mandatory minimum ten-year sentence.
This court found that his argument was foreclosed by Harris v.
United States, 536 U.S. 545, 568 (2002) (holding that increasing
mandatory

minimums

based

on

judicial

factfinding

does

not

violate the Sixth Amendment).
After

we

decided

Mubdi’s

appeal,

the

Supreme

Court

overruled Harris in Alleyne and held that facts which increase
mandatory minimum sentences must be admitted or submitted to the
jury and established beyond a reasonable doubt.
2163.

133 S. Ct. at

Thus, the district court’s finding that Mubdi’s crime

involved 290.5 grams of cocaine, a finding that increases the
the mandatory minimum sentence, is impermissible.
Since the briefing in this case, the Supreme Court has also
held that the FSA applies to pre-FSA offenders sentenced after
the Act’s effective date.
2321,

2331

reconsider

(2012).
Mubdi’s

Dorsey v. United States, 132 S. Ct.

Thus,
sentence

the
in

FSA

applies

light

of

to

these

Mubdi.

We

intervening

changes.

II.
Mubdi did not preserve his Sixth Amendment claim before the
district court; therefore, we review his sentencing argument for
plain error.
2010).

United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

An error is plain when it is clear or obvious, and
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affects substantial rights.

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Id.

Even if the law at the time of

sentencing is “settled and clearly contrary to the law at the
time of appeal,” an error need only be “plain” at the time of
appellate review.
(1997).

Thus,

Johnson v. United States, 520 U.S. 461, 468

even

though

the

error

was

not

clear

to

the

district court at the time of Mubdi’s sentencing--in fact, it
was settled that the district court was correct at that time--it
is

now

clear

and

obvious

that

the

district

court

erred

in

finding facts that raised Mubdi’s mandatory minimum sentence.
The error also affected Mubdi’s substantial rights.

To

establish this element, Mubdi must show that the error actually
affected

the

outcome

of

the

proceedings,

i.e.,

that

his

“sentence was longer than that to which he would otherwise be
subject.”

United States v. Angle, 254 F.3d 514, 518 (4th Cir.

2001)

banc).

(en

If

the

district

court

applied

the

FSA’s

mandatory minimum for 50 grams of cocaine, it is possible that
Mubdi’s sentence would be ten years shorter.

Of course, the

district court may impose the same sentence on remand, but there
is nothing in the parties’ briefs that suggests such an outcome
is inevitable, nor is this possibility enough to deter us from
noticing the error.

Cf. United States v. Hughes, 401 F.3d 540,

556 & n.14 (4th Cir. 2005).
Even when plain error is established, an appellate court
may correct the error only if “not doing so would result in a
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miscarriage of justice, or would otherwise seriously affect the
fairness,

integrity

proceedings.”
(4th

Cir.

or

public

reputation

of

judicial

United States v. Whitfield, 695 F.3d 288, 303

2012)

(internal

quotations

omitted).

We

have

previously held that a failure to notice an error where the
sentence is in excess of that permitted by the jury verdict
because
effect.

of

a

Sixth

Amendment

violation

would

have

such

an

See United States v. Hughes, 401 F.3d 540, 555 (4th

Cir. 2005).

In light of Alleyne, we conclude that a Sixth

Amendment violation involving a mandatory minimum sentence would
equally

diminish

judicial system.

the

integrity

and

public

reputation

of

the

Accordingly, the district court plainly erred

by basing Mubdi’s mandatory minimum sentence on its finding that
Mubdi’s crime involved 290.5 grams of cocaine, rather than a
fact to which he admitted--responsibility for 50 grams.

III.
For the foregoing reasons, we vacate Mubdi’s sentence and
remand this case for resentencing.
VACATED AND REMANDED

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