United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 04-2176

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United States of America, *

*

Appellee, *

*

v. *

*

Solomon L. Coffey, also known as *

Solomon Murray, also known as Box, *

*

Appellant. *

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Appeals from the United States

 No. 04-2247 District Court for the

 ___________ District of Nebraska.

United States of America, *

*

Appellee, *

*

v. *

*

Solomon L. Coffey, also known as *

Levell Coffey, also known as *

Levell Murray, *

*

Appellant. *

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Submitted: June 22, 2005

Filed: July 25, 2005

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1

The Honorable Laurie Smith Camp, United States District Judge for the

District of Nebraska.

2

The district court also sentenced Coffey to 30 months’ imprisonment for

violating the conditions of supervised release following the completion of his

sentence for an earlier conviction. We need not consider the thirty-month sentence

in our analysis because it runs concurrently with the longer sentence for the

conspiracy conviction. 

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Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.

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WOLLMAN, Circuit Judge.

Solomon L. Coffey appeals from the sentence imposed on him following his

conviction for conspiracy to distribute and possess with intent to distribute more than

50 grams of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 846.

We affirm.

I.

The district court1

 found by a preponderance of the evidence that Coffey was

responsible for 2.7 kilograms of crack cocaine. This finding increased Coffey’s

offense level from 32 (with a sentencing range of 168-210 months) to 38 (with a

sentencing range of 324-405 months). The district court sentenced him to 324

months’ imprisonment, a five-year term of supervised release, and a $100 special

assessment.2

 

We affirmed Coffey’s conviction but remanded for resentencing after

concluding that his objection at sentencing to the sufficiency of the government’s

evidence of drug quantity was sufficient to preserve a constitutional claim that his

sentence violated United States v. Booker, 125 S. Ct. 738 (2005). See United States

v. Coffey, 395 F.3d 856 (8th Cir. 2005). Thereafter, our court granted the

government’s petition for rehearing en banc and vacated the opinion and judgment.
3

Pirani makes clear that Coffey’s objection to the sufficiency of the evidence

was insufficient to preserve a Booker claim. See Pirani, 406 F.3d at 550. 

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The en banc court has now remanded Coffey’s appeal to this panel for plain error

review of his sentencing challenge in the light of United States v. Pirani, 406 F.3d

543 (8th Cir. 2005) (en banc).3

II.

We conduct plain error review under the four-part test of United States v.

Olano, 507 U.S. 725 (1993). Pursuant to that test, before we can correct an error not

raised at trial, “there must be (1) error, (2) that is plain, and (3) that affects substantial

rights. Johnson v. United States, 520 U.S. 461, 466-67 (1997). If all three conditions

are met, we may remedy the error only if it “seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. 

The district court’s enhancement based on drug quantity was erroneous in light

of Booker because it was imposed on the basis of judge-found facts in a mandatory

guidelines regime. In these circumstances, the first two Olano factors are satisfied.

See Pirani, 406 F.3d at 550. Whether the error affected Coffey’s substantial rights is

another matter. To satisfy this factor, “the defendant must show a ‘reasonable

probability,’ based on the appellate record as a whole, that but for the error he would

have received a more favorable sentence.” Id. at 552. Although the district court

sentenced Coffey at the low end of the sentencing range, that is “the norm for many

judges” and “is insufficient, without more, to demonstrate a reasonable probability

that the court would have imposed a lesser sentence absent the Booker error.” Id. at

553. Coffey argues in his supplemental brief that his personal circumstances (which

he contends include parenthood, engagement, and efforts toward rehabilitation)

suggest that the district court would have imposed a lesser sentence. This argument

is unavailing, particularly given the absence of any discussion of Coffey’s personal
4

United States v. Booker, 125 S. Ct. 738 (2005).

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circumstances by the district court. Accordingly, we conclude that Coffey has not

demonstrated prejudicial plain error.

The judgment of conviction is reinstated and the sentence is affirmed.

HEANEY, Circuit Judge, concurring.

I recognize we are bound by our circuit’s en banc decision in United States v.

Pirani, 406 F.3d 543 (8th Cir. 2005), and therefore concur in the majority’s opinion.

I write separately to underscore my view, as stated in my dissent in Pirani, that

Coffey’s sentencing objection was sufficient to preserve his Sixth Amendment

sentencing challenge. See Pirani, 406 F.3d at 555-62.

The Pirani majority opined that only specific objections, those in which the

defendant explicitly mentions either the Sixth Amendment, Apprendi v. New Jersey,

530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296 (2004), preserve a

Booker4

 claim for appellate review. Pirani, 406 F.3d at 549. Obviously, Coffey could

not have objected on the basis of Blakely; that decision was not issued at the time of

his sentencing. Thus, as I understand the Pirani majority, Coffey could only save his

Booker issue for appeal by asserting that the district court could not increase his

guidelines sentence due to drug quantities not proven to a jury beyond a reasonable

doubt, because Apprendi and/or the Sixth Amendment prohibited such action. But

soon after Apprendi was issued, our circuit was quick to “squarely reject[]” the view

that Apprendi rendered guideline enhancements based on judge-found facts

unconstitutional. United States v. Alvarez, 320 F.3d 765, 766-67 (8th Cir. 2002)

(citing United States v. Diaz, 296 F.3d 680 (8th Cir. 2002) (en banc)).
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In this case, Coffey objected to the district court increasing his mandatory

guidelines sentence on the basis of the evidence before it, asserting that it was

insufficient to establish any drug quantity. This is precisely what Justice Stevens’s

majority opinion in Booker found to be problematic with the guidelines: that it was

a system of mandatory sentencing in which a defendant’s sentence increased based

on evidence never proven to a constitutionally acceptable standard of proof. Booker,

125 S. Ct. at 756. Still, according to the Pirani majority and the en banc court which

returned Coffey’s case for plain error review, this type of objection is not enough.

So Coffey challenged his mandatory guidelines sentence in district court for

essentially the same reason that the Booker court found the guidelines

unconstitutional, yet that objection was not specific enough to preserve his Booker

claim. Instead, the Pirani majority required Coffey to either cite a case–Blakely–that

was not yet law, or rely on Apprendi or the Sixth Amendment, which had been held

by our court en banc to have no application to the guidelines. Where could such an

absurd result stand? Justice Scalia might reply, “Only in Wonderland.” Booker, 125

S. Ct. at 793 (Scalia, J., dissenting).

Coffey did everything reasonably necessary to preserve his Sixth Amendment

sentencing claim for our review. If not for our court’s decision in Pirani, I would

adhere to our initial panel determination on this issue and allow the district court the

opportunity to resentence Coffey under a constitutional sentencing regime.

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