United States v. Wilson , 195 F. App'x 753 ( 2006 )


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  •                                                                              F I L E D
    United States Court of Appeals
    Tenth Circuit
    September 13, 2006
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                           Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 04-6322
    v.
    (D.C. No. CR-98-93-T)
    (W.D. Okla.)
    COREY ANTWAN WILSON,
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before EBEL, HOLLOWAY and KELLY, Circuit Judges.
    Defendant-Appellant, Corey Antwan Wilson, appeals from his resentencing in
    connection with his guilty plea for distributing cocaine base (crack) in violation of 
    21 U.S.C. § 841
    (a)(1). After this court vacated the sentence of life imprisonment imposed
    by the district court and determined that only 711 grams of cocaine base, rather than
    1590.8 grams found by the district court, were attributable to Mr. Wilson, United States v.
    Wilson, No. 99-6233, 
    229 F.3d 1165
    , 
    2000 WL 1199101
     (10th Cir. 2000) (unpublished
    disposition) (“Wilson I”), the district court resentenced Mr. Wilson to 360 months’
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. This court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    imprisonment based on Mr. Wilson having a base offense level of 36 under the United
    States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”). See U.S.S.G. §
    2D1.1(c)(2) (specifying a base offense level of 36 for a drug quantity of at least 500
    grams but less than 1.5 kilograms of cocaine base). On appeal, Mr. Wilson contends that
    the resentencing violates his constitutional rights and the Supreme Court’s holding in
    United States v. Booker, 
    125 S. Ct. 738
     (2005). We have jurisdiction under 
    18 U.S.C. § 3742
    (a) and 
    28 U.S.C. § 1291
    , and AFFIRM.
    BACKGROUND
    In 1998 Mr. Wilson was indicted in six counts by a grand jury sitting in the
    Western District of Oklahoma. Count 1 charged him with conspiracy to distribute
    cocaine base in violation of 
    21 U.S.C. § 846
    . Count 2 charged him with maintaining a
    place for distribution and use of a controlled substance in violation of 
    21 U.S.C. § 856
    and aiding and abetting punishable under 
    18 U.S.C. § 2
    . Counts 8, 10, 19 and 27 charged
    distribution of cocaine base in violation of 
    21 U.S.C. § 841
    (a)(1) on four different
    occasions.
    Mr. Wilson pled guilty to the distribution charged in Count 27, which carried a
    maximum penalty of life imprisonment with a mandatory minimum of ten years. After
    overruling all of Mr. Wilson’s objections to the recommendations contained in the
    Presentence Report, the district court imposed a sentence of life imprisonment.
    In his prior appeal, Mr. Wilson challenged the life sentence on several grounds.
    Specifically he challenged: (1) the propriety of the imposition of an enhancement for his
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    role in the offense; (2) the drug quantity calculation; (3) the enhancement for obstruction
    of justice; and (4) the denial of an adjustment for acceptance of responsibility. Rejecting
    all of Mr. Wilson’s contentions except some of those attacking the drug quantity
    calculation, this court ordered Mr. Wilson’s case remanded for resentencing in light of
    United States v. Santos, 
    195 F.3d 549
     (10th Cir. 1999), and also determined that only 711
    grams, rather than the 1590.8 grams found by the district court, were attributable to Mr.
    Wilson. Wilson I.
    After the parties had submitted briefs addressing the potential impact of Apprendi
    v. New Jersey, 
    530 U.S. 466
     (2000), and Blakley v. Washington, 
    124 S. Ct. 2531
     (2004),
    on Mr. Wilson’s sentence, the district court resentenced him on September 30, 2004. The
    court imposed a sentence of 360 months’ imprisonment, followed by a term of supervised
    release of five years. The court also imposed an identical alternative sentence of 30
    years’ imprisonment in the event the Guidelines were declared unconstitutional by the
    Supreme Court.1
    Mr. Wilson timely filed this appeal, contending that the district court erred in
    imposing a sentence in excess of the statutory maximum penalty applicable to the offense
    of conviction and that the district court incorrectly calculated the guideline range. We
    subsequently directed the parties to file supplemental briefs addressing: (1) whether the
    1
    Because of this court’s finding in Wilson I, defendant had a base offense level of
    36. See U.S.S.G. § 2D1.1(c)(2). After the court applied other enhancements, however,
    defendant’s total offense level became 42, resulting in a guideline range of 360 months to
    life. Wilson I at **5.
    -3-
    district court committed constitutional error under Booker by applying a Guidelines base
    offense level of 36 when the defendant admitted distributing only ten grams of cocaine
    base; and (2) if so, whether the error was harmless beyond a reasonable doubt in light of
    the district court’s imposition of an alternative identical sentence. We conclude that the
    district court committed constitutional Booker error but that the error is harmless.
    DISCUSSION
    1. Applicable statutory range
    Mr. Wilson first contends that the district court erred in resentencing him to a term
    of imprisonment in excess of the statutory maximum penalty applicable to the offense of
    conviction. He points out that his indictment did not charge a particular quantity of
    cocaine base and that 
    21 U.S.C. § 841
    (b)(1)(C) provides that if a person is charged with
    distributing cocaine base (a Schedule II drug) and no drug quantity is charged, “such
    person shall be sentenced to a term of imprisonment of not more than 20 years.” See 
    21 U.S.C. § 841
    (b)(1)(C). Because of the failure of the indictment to charge a particular
    drug quantity, he argues, the district court’s error in sentencing him to more than 20
    years’ imprisonment is reversible error. We disagree.
    Wilson’s argument relies on this court’s holding in United States v. Jones, 
    235 F.3d 1231
     (10th Cir. 2000), in which we stated:
    We conclude the quantity of drugs involved in a violation of § 841 is an
    essential element of the offense if that fact exposes the defendant to a
    heightened maximum sentence under § 841(b)(l)(A) or (B). A district court
    may not impose a sentence in excess of the maximum set forth in 
    21 U.S.C. § 841
    (b)(l)(C) unless the benchmark quantity of cocaine base for an enhanced
    penalty is alleged in the indictment in addition to being submitted to the jury
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    and proven beyond a reasonable doubt. See United States v. Kovach, 
    208 F.3d 1215
    ,1218 (10th Cir. 2000) (“To pass constitutional muster, an indictment
    must contain all the essential elements of the charged offense.”).
    
    235 F.3d at 1236-37
    . Because Jones’s sentence impermissibly exceeded the statutory
    maximum term applicable to the offense charged by the grand jury, this court held that
    the error was not harmless. 
    Id. at 1235
    .
    However, Jones did not address whether the failure to charge a specific drug
    quantity may in some cases be harmless error. Since Jones, this court has held that “the
    failure of an indictment to allege an essential element of a crime . . . is subject to harmless
    error review.” United States v. Prentiss, 
    256 F.3d 971
    , 981 (10 th Cir. 2001) (en banc).
    See also United States v. Rivera, 
    347 F.3d 850
    , 851-52 (10 th Cir. 2003). Thus, while it is
    error for a district court to sentence a defendant to greater punishment than is provided for
    the offense charged in the indictment, as occurred at resentencing here, the error is subject
    to harmless error analysis.
    The record in this case shows that Mr. Wilson and his attorney consistently
    acknowledged that the drug quantity involved in the count of conviction was
    approximately 10 grams of crack cocaine. The statutory punishment range for that
    quantity is five to forty years. 
    21 U.S.C. § 841
    (b)(1)(B)(iii).
    During the change of plea proceeding conducted on September 8, 1998, Mr.
    Wilson’s counsel asserted that only 10 grams of cocaine base was attributable to him in
    the following exchange:
    MR. FISHER [Defense counsel]: As to 17-B, Your Honor, the ten-year
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    mandatory minimum, - -
    THE COURT: Yes.
    MR. FISHER: - - there’s a little bit of explanation that we
    probably should put in the record on that.
    Mr. Wilson was advised, as I was, at his initial appearance in front of
    Magistrate Roberts, that the government’s position in this case is that he may
    be responsible for drugs in excess of one-and-a-half kilos. We intend to
    contest that drug quantity.
    But in Count 27 that he’s pleading guilty to, it only involves ten grams.
    It doesn’t state that in the indictment, it just says, “a quantity.” That
    transaction involved only ten grams of cocaine base.
    ROA, Vol. I, Doc. 371, Exhibit 2, pp. 5-6 (emphasis added).
    Mr. Wilson also admitted in a written statement submitted to the Probation Office
    that his culpability for Count 27 included a quantity of crack in excess of the five-gram
    minimum necessary to authorize the sentence imposed under subsection
    841(b)(1)(B)(iii).2 Our opinion in the previous appeal noted that Mr. Wilson had made
    representations in “unqualified terms” that the count of conviction involved 10 grams of
    crack. Wilson I at **1, n.3.
    In the context of constitutional error, the test for harmlessness is “[w]hether it
    appears ‘beyond a reasonable doubt that the error complained of did not contribute to the
    [sentence] obtained.’” United States v. Prentiss, 
    256 F.3d at 983-85
     (quoting Neder v.
    United States, 
    527 U.S. 1
    , 15 (1999)). Here the omitted element (a quantity of at least
    2
    In a written statement to the probation office regarding his version of events and
    acceptance of responsibility for Count 27, Mr. Wilson wrote that he “sold 50 grams of
    crack cocaine” on March 9, 1998. ROA, Vol. I, Doc. 371, Exhibit 4.
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    five grams of cocaine base) was not contested by Mr. Wilson but was specifically
    admitted by him at the plea proceeding and in his statement to the Probation Office.
    Therefore, we conclude that the error in the Indictment not charging a specific drug
    quantity is harmless beyond a reasonable doubt.
    2. Booker violation
    We now address whether Mr. Wilson’s sentence violates the Supreme Court’s
    holding in United States v. Booker. Mr. Wilson contends that the district court violated
    Booker by basing his sentence on facts that were neither admitted by him nor found by a
    jury. We agree.3
    This court has recognized two types of Booker errors, constitutional and non-
    constitutional. United States v. Gonzalez-Huerta, 
    403 F.3d 727
    , 731 (10th Cir. 2005) (en
    banc). A constitutional Booker error arises when a court “[relies] upon judge-found facts,
    other than those of prior convictions, to enhance a defendant’s sentence mandatorily.” 
    Id.
    A non-constitutional error occurs when a sentencing court “appl[ies] the Guidelines in a
    mandatory fashion, as opposed to a discretionary fashion, even though the resulting
    sentence was calculated solely upon facts that were admitted by the defendant, found by
    the jury, or based upon the fact of a prior conviction.” 
    Id.
     at 731–32.
    Here Mr. Wilson admitted distributing only 10 grams of crack, which yields a base
    offense level of 26 under the Guidelines. See U.S.S.G. § 2D1.1(c)(7). However, the
    3
    The district court resentenced Mr. Wilson before the decision in Booker, so the
    district court was following existing law in proceeding as it did. But of course we are
    bound to apply current law, in light of which the error below is clear.
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    district court imposed a sentence based on this court’s determination that 711 grams of
    crack, which yields a base offense level of 36, see U.S.S.G. § 2D1.1(c)(2), were
    attributable to him. The district court also found other facts that resulted in an increase in
    the offense level and thus in the Guidelines range.4 Because Mr. Wilson’s sentence was
    based on facts that were neither admitted by him nor found by a jury, the district court
    committed constitutional Booker error, and we must determine whether the error is
    harmless. See United States v. Windrix, 
    405 F.3d 1146
    , 1158 (10th Cir. 2005); see also
    United States v. Lang, 
    405 F.3d 1060
    , 1063-64 (10th Cir. 2005). The Government carries
    the burden to demonstrate harmlessness, beyond a reasonable doubt. Lang, 
    405 F.3d at 1065
    ; United States v. Waldroop, 
    431 F.3d 736
    , 743 (10th Cir. 2005) (concluding
    constitutional Booker error was harmless beyond a reasonable doubt because there was no
    reason to believe the district court would impose a different sentence upon remand); see
    also United States v. Small, 
    423 F.3d 1164
    , 1190-91 (10th Cir. 2005), cert. denied, 
    126 S. Ct. 1377
     (2006) (reviewing to determine whether preserved constitutional Booker error
    was harmless beyond a reasonable doubt); Delaware v. Van Arsdall, 
    475 U.S. 673
    , 681
    (1986) (noting the Supreme Court has “repeatedly reaffirmed the principle that an
    otherwise valid conviction should not be set aside if the reviewing court may confidently
    say, on the whole record, that the constitutional error was harmless beyond a reasonable
    4
    See n.1, supra.
    -8-
    doubt”).5
    The government contends that the constitutional Booker error is harmless beyond a
    reasonable doubt because the district court, in issuing its identical, alternative sentence,
    exercised the same discretion now granted by the remedial portion of Booker in
    sentencing Mr. Wilson, and that his sentence did not exceed the statutory maximum for
    the 10 grams of cocaine base admitted by him. Therefore, the government asserts,
    remand would be futile because it is already quite clear that the district court would
    impose the same sentence. We agree. Moreover, we are not persuaded by defendant’s
    contention that the alternate sentence is a nullity because the specific condition
    envisioned by the district court – a holding that the Guidelines are unconstitutional – did
    not occur in Booker. We are not actually affirming the district court’s alternative
    sentence. Rather, that sentence is, we conclude, conclusive evidence that the Booker
    error was harmless and that the actual sentence, not the alternative sentence, should be
    affirmed.
    We have found constitutional Booker error to be harmless in previous cases. In
    one case we found that the overwhelming evidence supporting the judge-found facts,
    combined with the clear inferences to be drawn from the jury verdict, demonstrated that
    5
    We must decline defendant’s invitation to revisit the issue and hold that the
    harmless error doctrine does not apply because the error is of constitutional dimension.
    Not only are we bound by the prior decisions of other panels of this court, but also of
    course by decisions of the Supreme Court, which have long applied harmless error
    analysis to most constitutional errors. See, e.g., Chapman v. California, 
    386 U.S. 18
    , 24
    (1967).
    -9-
    the jury would have made the same findings that the judge made, had the issues been
    submitted to the jury. United States v. Riccardi, 
    405 F.3d 852
    , 875-76 (10th Cir.), cert.
    denied, 
    126 S.Ct. 825
     (2005). Moreover, we said in Riccardi that the fact that the district
    court had exercised its discretion to impose a sentence at the top of the range calculated
    under the Guidelines left no reason to believe that the district court would impose a
    different sentence if the case were to be remanded. 405 F.3d at 876.
    We later cited Riccardi in holding constitutional error to be harmless beyond a
    reasonable doubt in another case in which the district court had chosen a sentence at the
    very top of the Guidelines range. United States v. Waldroop, 
    431 F.3d at 742-43
    . In that
    case, we made no mention of the strength of the evidence supporting the judge-found
    facts that contributed to the Guidelines calculation. Because the Guidelines are still to be
    consulted as advisory, this result was sound. On remand, presumably the district judge
    would have found the same facts under the advisory Guidelines system that he had found
    before, and would have exercised his increased discretion to impose a sentence at least as
    severe as he had originally, given his comments on the defendant’s conduct and his
    previous decision to impose the maximum punishment permitted by the formerly
    mandatory Guidelines regime.
    In several cases we have found non-constitutional Booker error to have been
    harmless, relying specifically on the fact that the sentencing courts in those cases had (in
    anticipation of the possibility that the Supreme Court might declare the entire Guidelines
    -10-
    system unconstitutional) imposed alternative sentences identical to the Guidelines
    sentence, just as the district court did here in resentencing Mr. Wilson. United States v.
    Serrano-Dominguez 
    406 F.3d 1221
    , 1223-24 (10th Cir. 2005); United States v. Cornelio-
    Pena, 
    435 F.3d 1279
    , 1288-89 (10th Cir.), cert. denied, 
    126 S.Ct. 2366
     (2006); United
    States v. Cordova-Arevalo, __ F.3d __, 
    2006 W. 2259076
     (10th Cir. Aug. 8, 2006). We
    have reached the same conclusion of harmless error based on a district court’s issuance of
    an identical alternative sentence in at least one unpublished case involving constitutional
    Booker error. United States v. McCleary, No. 04-6316, 151 Fed.App. 697, 
    2005 WL 2746748
     (10th Cir. Oct. 25, 2005).
    We are convinced that if we were to remand this case the result would be the same.
    Although Riccardi and Waldroop can be distinguished on the basis that in those cases the
    sentences were at the top of the Guidelines range and in this case the sentence was at the
    bottom of the range, the more general reasoning is the same in all of these cases. That
    rationale is that the sentencing judge has, in each of these cases, made clear that the
    sentence imposed was reasonable and just. In Riccardi and Waldroop, the district courts
    had actually exercised the limited discretion available under the formerly mandatory
    Guidelines system, and thereby had signaled that the increased discretion available to
    them post-Booker would not have inured to the benefit of the defendants. Here, the
    sentencing judge made the same point even more clearly by means of the alternative
    sentence. In doing so, the judge was keenly aware that the punishment was severe, but he
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    was also focused on the specific circumstances of the case, as his comments made clear.
    The record shows that the court considered the 
    18 U.S.C. § 3553
    (a) factors before
    resentencing Mr. Wilson. The court was familiar with Mr. Wilson, as this was a re-
    sentencing, and considered mitigating matters which had occurred since his initial
    sentencing.
    The court also detailed its reasons prior to imposing sentence:
    Recognizing all the circumstances in this case, including the
    particularly egregious aspects of it as recalled by government counsel, the
    Court concludes that the range of punishment does provide a – though far less
    than his original sentence – a very serious range of punishment for this offense
    and finds that the following sentence is appropriate.
    Pursuant to the Sentencing Reform Act of 1984, it is the judgment of
    the Court that the defendant is committed to the custody of the Bureau of
    Prisons to be imprisoned for a term of 360 months.
    The selection of the bottom of the guideline range in this case is made
    not in disregard of the egregious circumstances, both in the crime of offense
    but in the efforts to mislead the Court in – in connection with the sentencing,
    but rather to recognize that a 360-month sentence is a very severe sentence
    under any circumstances and is sufficient to address the issues in Mr. Wilson’s
    case. Thus, the selection of the bottom of the guideline range is made for those
    reasons.
    ROA, Vol. II at 12.
    In addition, the court added the following:
    In addition to the Court’s stated reasons for imposing the selection of
    the sentence imposed, it is the Court’s additional reason that such a sentence
    will be sufficient under the circumstances to deter others who might be
    tempted to commit this offense and certainly this level of criminal activity, and
    is imposed as a deterrent to – to others, and is deemed to be sufficient for that
    purpose in light of the severity of the guideline ranges and the statutory
    -12-
    permissive penalties that can be imposed.
    ROA, Vol. II at 14.
    We are mindful that the judge’s comments came in explanation of the Guidelines
    sentence and that the judge did not specifically say that the alternative sentence was based
    on the features of the case that he had just mentioned. But that does not suggest that the
    alternative sentence was somehow loosened from those underpinnings, as defendant
    suggests, because that implies that the alternative sentence was merely arbitrary. We find
    that implication unjustified. The judge had acknowledged that he was imposing a “very
    severe” sentence. We do not think that any part of the adjudication was undertaken
    lightly. To the contrary, we are convinced that the only reasonable inference is that the
    alternative sentence was based on the judge’s thoughtful consideration of all relevant
    factors.
    The comments by the district court lead us to conclude that the court, although
    bound at the time by a mandatory Guidelines regime, was guided in its alternative
    sentence by the desire to fashion an appropriate sentence for the offense in this case. A
    sentence within the range set by the advisory Guidelines is presumptively reasonable.
    United States v. Kristl, 
    437 F.3d 1050
    , 1054 (10th Cir. 2006).
    Given this alternative sentence, we need not speculate on the sentence the district
    court might impose if we were to remand the case, or the reasons for the sentence
    imposed by the court. The district court has clearly expressed its intent through its
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    alternative sentence, and there is no reason to believe that it would impose a different
    sentence upon remand. See Waldroop, 
    431 F.3d at 743
    ; see also United States v.
    Serrano-Dominguez, 
    406 F.3d 1221
    , 1223-24 (10th Cir. 2005) (in spite of non-
    constitutional Booker error, sentence affirmed where district court pronounced alternate
    sentence that was identical to the actual sentence). Thus, it would be futile to remand for
    resentencing.
    Accordingly, we conclude that the error in sentencing Mr. Wilson through the use
    of judicial fact-finding was harmless beyond a reasonable doubt.
    CONCLUSION
    For the foregoing reasons, the judgment of the District Court is
    AFFIRMED.
    ENTERED FOR THE COURT
    William J. Holloway, Jr.
    Circuit Judge
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