The opinion of the court was delivered by: Susan Webber Wright United States District Judge
On October 31, 2006, the Eighth Circuit issued an opinion remanding this case for re-sentencing, stating in part as follows: "The United States agrees that plain error occurred because the judge's oral pronouncement of the sentence is not the sentence imposed in fact, and thus supports Howard's appeal." U.S. v. Howard, 2006 WL 3147476, *1 (8th Cir. Oct. 31, 2006)(per curiam).
In accordance with the Eighth Circuit's mandate, received by this Court on November 27, 2006, the Court will promptly schedule a hearing for re-sentencing. However, because the Eighth Circuit received an inaccurate account and interpretation of this Court's oral pronouncement of the sentence, the Court finds it necessary to provide the following information.
On March 10, 2004, a jury convicted Defendant Demario A. Howard ("Howard") of two counts of possession of marijuana with intent to distribute, set forth in Counts 1 and 2 of the Indictment, and one count of brandishing a firearm, set forth in Count 3 of the Indictment. On September 1, 2004, the Court sentenced Howard to 99 months imprisonment, in accordance with the United States Sentencing Guidelines ("USSG").
In determining Howard's 99-month sentence, the Court made a factual finding, by a preponderance of the evidence, regarding drug quantity. At the time of Howard's sentencing, the United States Supreme Court had granted certiorari in United States v. Booker, 375 F.3d 508 (7th Cir. 2004) , cert. granted, 125 S.Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104), and the constitutionality of USSG provisions requiring a judge to impose a sentence based on the judge's findings of fact was uncertain. Accordingly, this Court provided two alternative sentences--one that would apply if the USSG were unconstitutional in their entirety, and another that would apply if the USSG were ruled only partially unconstitutional. See docket entry #50. In Howard's case, both alternative sentences carried the same sentence--2 months of imprisonment on Counts 1 and 2, to be served concurrently, and 84 months on Count 3.
During the sentencing hearing, the Court made clear that for the purpose of the "sentence imposed" the Court would assume that the Sentencing Guidelines were constitutional, and the Court advised Howard of his right to appeal the sentence imposed. See docket entry #57, Transcript of Sentencing Hearing at 10, 17. Furthermore, the Court instructed Howard's counsel, Darrell F. Brown, as follows:
Court: So what you need to do is just appeal the sentence I imposed in total--Mr. Brown: Right.
Court: that what I've done is--for your client is unconstitutional or in error. Mr. Brown: I--I understand.
Court: Because I have done the judicial fact finding on it.
Howard appealed his conviction, arguing insufficient evidence. On January 12, 2005, while Howard's appeal was pending, the Supreme Court handed down its opinion in Booker.*fn1 If Howard had timely appealed his sentence, the Eighth Circuit would have reviewed his sentence in light of the new rule announced Booker. Howard did not, however, appeal his sentence. On October 31, 2005, the Eighth Circuit affirmed Howard's conviction. See United States v. Howard, 427 F.3d 554 (8th Cir. 2005).
On December 2, 2005, Howard filed a motion requesting that the Court change his sentence to the first, alternative sentence announced at the sentencing hearing. In support of his motion, Howard stated that he was not aware, until after his imprisonment, that his "written sentence" provides that he is sentenced for a term of 99 months. In an order denying Howard's motion, the Court stated:
The alternative sentences provided in this case are not automatic or self-executing. They were provided in an effort to eliminate the need for a new sentencing hearing in the event that the sentence actually imposed was overturned on appeal. Defendant did not appeal his ...