NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

N o . 05-3673

U N I T E D STATES OF AMERICA

v. M A R K DOLBIN,

Appellant

O n Appeal from United States District Court

f o r the Middle District of Pennsylvania

D is tric t Court No.: 03-cr-0118

D is tric t Judge: Honorable Yvette Kane

S u b m itte d Under Third Circuit LAR 34.1(a)

M a y 25, 2007

B e f o re : CHAGARES, HARDIMAN and TASHIMA, * Circuit Judges.

(F ile d : July 3, 2007

O P IN I O N OF THE COURT

H A R D IM A N , Circuit Judge. A p p e lla n t Mark R. Dolbin (Dolbin) challenges his conviction and sentence.

Because we find no trial error, we will affirm Dolbin's conviction. Nevertheless, we will v a c ate Dolbin's sentence and remand to the District Court for resentencing in light of U n i te d States v. Cooper, 437 F.3d 324 (3d Cir. 2006), and United States v. Gunter, 462 F .3 d 237 (3d Cir. 2006).

I.

D o lb in was indicted by a grand jury on five counts: (1) conspiracy to manufacture, d is trib u te and possess with the intent to manufacture and distribute methamphetamine (21U.S.C. § 846); (2) manufacture, distribution, and possession with the intent to m a n u f ac tu re or distribute methamphetamine (21U.S.C. § 841(a)(1) and (2)); (3) p o s s e ss io n of a firearm by an Armed Career Criminal (18U.S.C. §§ 922(g)(1) and 9 2 4 (e )); (4) obstruction of justice (18U.S.C. § 1512(c)(1) and (2)); and (5) criminal f o rf e itu re (21U.S.C. § 853(p)). The jury found Dolbin guilty on Counts 1-4 and the D istric t Court sentenced him to an aggregate term of life imprisonment. Dolbin filed this tim e ly appeal.

II.

D o lb in first argues that the evidence at trial was insufficient to support the guilty v e rd icts on Counts 1 and 2, both of which relate to possession and intent to distribute m e th a m p h e t a m i n e .

A court of appeals should "reverse a jury verdict for insufficiency of the evidence `o n ly when the record contains no evidence, regardless of how it is weighted, from which th e jury could find guilt beyond a reasonable doubt.'" United States v. Mussare, 405 F.3d 1 6 1 , 166 (3d Cir. 2005) (quoting United States v. Anderson, 108 F.3d 478, 481 (3d Cir. 1 9 9 7 )). We "must view the evidence in the light most favorable to the government and m u s t sustain a jury's verdict if `a reasonable jury believing the government's evidence c o u ld find beyond a reasonable doubt that the government proved all the elements of the o f f en s e s.'" United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997) (quoting United S ta te s v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)).

H e re , the government's case against Dolbin relied upon the testimony of Roger F re y, a separately indicted co-conspirator. According to Frey's testimony, he and Dolbin tw ic e purchased large quantities of methamphetamine. As to the first purchase, Frey te stif ie d that Dolbin expressed interest in acquiring inexpensive methamphetamine from C a lif o rn ia . Frey testified that he traveled to California, where he contacted Dolbin and in f o rm e d him of the price of methamphetamine. According to Frey, he returned to Pennsylvania and delivered four pounds of methamphetamine to Dolbin, who inquired as to the whereabouts of the fifth pound that had been agreed upon. Frey testified that D o lb in paid his travel expenses and an additional $4,000 for his troubles for this first trip to California.

F re y also testified that he and Dolbin planned additional trips to California to p u rc h a se methamphetamine. Frey stated that he made a "dry run" from California to P e n n sylv a n ia using a Greyhound bus to assess police presence and that he and Dolbin p la n n e d to meet to discuss the results of the "dry run." Frey also testified that after re tu rn in g from his "dry run," Dolbin paid for him to stay at the Holiday Inn Express in F ra c k v ille , Pennsylvania, while Dolbin raised money for Frey's next drug purchasing trip.

Frey testified that for that trip, Dolbin entrusted him with $55,000 with which to purchase a n o th e r five pounds of methamphetamine.

In addition to Frey's testimony, the jury heard from Drug Enforcement A d m in is tra tio n Special Agent John Langan, who testified that he witnessed Dolbin pick u p Frey at the Harrisburg bus terminal upon his second arrival from California, and that D o lb in placed a sham package of methamphetamine into the trunk of a black Mercedes B e n z . Police then overheard Dolbin discuss cutting methamphetamine with Frey, which p rom p ted them to arrest Dolbin after a brief chase. Finally, James Conners, Dolbin's life lon g friend, testified that Dolbin called him from prison to discuss whether Conners h a d successfully removed a scale and a rifle from Dolbin's residence and concealed large q u a n titie s of cash and methamphetamine.

The aforementioned facts, when taken in the light most favorable to the g o v e rn m e n t, lead to the ineluctable conclusion that the jury was presented with ample e v id e n c e from which it could have concluded reasonably that Dolbin was guilty beyond a rea so n ab le doubt of Counts 1 and 2 of the indictment. Indeed, presuming that the jury f o u n d Frey credible, his testimony alone would have been sufficient for the jury to have c o n v icte d Defendant of these charges. Accordingly, we reject Dolbin's third and fourth assig n m en t s of error.

I I I.

D o lb in challenges his sentence as to Counts 1 and 2 because the indictment listed th e quantity of methamphetamine in the "Special Findings" section of the indictment, ra th e r than individually setting forth the quantity as to each count. Dolbin concedes that b e c a u se he did not object to this issue in the Court below, the issue is subject to plain e rro r review under Fed. R. Crim. P. 52(b). Under that standard, an error must be "plain" a n d affect "substantial rights." United States v. Cotton, 535 U.S. 625 , 631 (2002). An e rro r is "plain" if it is "clear" or "obvious" under "current law." Johnson v. United S ta te s, 520 U.S. 461, 467 (1997). An error "affect[s] substantial rights" if it "affected the o u tc o m e of the district court proceedings." Cotton, 535 U.S. at 631 (citation omitted).

First, we note our agreement with Dolbin that Apprendi v. New Jersey, 530 U.S.

4 6 6 (2000), and United States v. Booker, 543 U.S. 220 (2005), require that a defendant m u s t be charged with all the elements of a crime. Dolbin also correctly notes that under U n ite d States v. Lacy, 446 F.3d 448, 453 (3d Cir. 2006), the quantity of m e th a m p h e ta m in e is an element of a possession with intent to distribute crime. These p rin c ip le s of black-letter law shed no light, however, on the question of where in the in d ic tm e n t the elements of the offense must be listed. Here, it is clear that the elements of th e offenses were listed in the "Special Findings" section of the indictment.

Therefore, the failure to individually set forth the quantity of methamphetamine as p a rt of the charging sections of Counts 1 and 2 does not amount to plain error. That f a ilu re is neither "clear under the current law," nor does it affect Dolbin's substantial rig h ts . In sum, Dolbin's second assignment of error is rejected because the indictment e x p lic itly stated the elements of the crimes with which he was charged, tried, and c o n v ic te d .

IV .

F in a lly, Dolbin challenges the reasonableness of his sentence because the District C o u rt made no mention of the factors enumerated in 18U.S.C. § 3553(a). The g o v e rn m e n t concedes that the District Court erred by not stating the reasons supporting th e sentence in open court. However, the government asserts that despite this error, the s e n te n c e need not be vacated because: (1) the error does not amount to "plain error"; and (2 ) the court explained its § 3553(a) reasons in a written judgment that was drafted the s a m e day as sentencing. But our decisions in Cooper and Gunter instruct that neither of th e government's explanations cure the error.

First, in Cooper we explained that Booker requires that all sentences be reviewed f o r reasonableness. Cooper, 437 F.3d at 327. Therefore, despite the fact that Dolbin f a iled to preserve this issue below, we review the sentence for reasonableness, not plain e rro r. Second, in Cooper we held that the record below must demonstrate that the district c o u rt gave "meaningful consideration" to the § 3553(a) factors. Id. at 329. We explained th a t the "court need not discuss every argument made by a litigant if an argument is c le a rly without merit . . . [n]or must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account at s e n te n c in g ." Id. However, some level of consideration must be apparent from the record.

Id. Without that explanation of the court's consideration, we have no basis upon which to re v ie w the district court's exercise of discretion. Id. (quoting United States v. C u n n in g h a m , 429 F.3d 673, 679 (7th Cir. 2005) (relying on United States v. Johnson, 388 F .3 d 96, 101 (3d Cir. 2004))).

F o llo w in g Cooper, in Gunter we held that at sentencing a district court must: (1) c a lc u la te a defendant's guideline sentence precisely as it would have pre-Booker; (2) f o rm a lly rule on motions of both parties and state on the record whether the court is g ra n tin g a departure and how that departure affects the guidelines calculation, and take in to account pre-Booker case law, which continues to have advisory force; and (3) exercise discretion by considering the relevant § 3553(a) factors. Gunter, 462 F.3d at 2 4 7 . Finally, we note that the Supreme Court has recently instructed that "[t]he s e n te n c in g judge should set forth enough to satisfy the appellate court that he has c o n sid e re d the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." United States v. Rita, 2007 WL 1772146, at *12 (U.S. Jun.

2 1 , 2007) (citation omitted).

In Dolbin's case, the only record of the District Court's consideration of the re le v a n t § 3553(a) factors is a rote statement in a written judgment, without any insight in to the reasons for the District Court's determination. Cooper and Gunter ­ both of w h ic h were decided after the District Court imposed the sentence at issue ­ require more.

For the foregoing reasons, we find that Dolbin's first assignment of error has m e rit, and therefore vacate his sentence and remand to the District Court for resentencing c o n sis te n t with Cooper and Gunter.

* The Honorable A. Wallace Tashima, Senior Circuit Judge for the United States C o u rt of Appeals for the Ninth Circuit, sitting by designation.