United States v. Fuller , 426 F.3d 556 ( 2005 )

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2004
(Argued: May 19, 2005 Decided: October 17, 2005
Errata Filed: November 3, 2005)
Docket No. 04-4595-cr
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN FULLER, also known as King John,
Defendant-Appellant.
Before: OAKES and CABRANES, Circuit Judges, and GOLDBERG , Judge.*
We consider here whether a sentence imposed by the United States District Court for the
Southern District of New York (Colleen McMahon, Judge) that was styled “in the alternative”—i.e.,
as the sentence of the Court regardless of whether or not the U.S. Sentencing Guidelines were
binding—during the period after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296
(2004), but before its decision in United States v. Booker, 125 S. Ct. 738 (2005), was error in light of the
subsequent teachings of the Supreme Court and our related jurisprudence, and if so whether such
error is harmless. Because, with the benefit of hindsight, we conclude that the sentence amounted
to error that we cannot deem harmless, we remand the cause to the District Court with instructions
to vacate defendant’s sentence and resentence him in conformity with our opinion in United States v.
*
The Honorable Richard W. Goldberg, Senior Judge of the United States Court of International Trade, sitting
by designation.
1
Fagans, 406 F.3d 138 (2d Cir. 2005).
Inasmuch as the District Court’s four-level upward departure calculation was based upon the
Court’s analogy between defendant’s bartering of drugs in exchange for firearms and the sentencing
enhancement prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines, we conclude that
the District Court’s departure was not an abuse of discretion. We also hold that the District Court
provided an adequate, on-the-record statement explaining its upward departure, as required by 18
U.S.C. § 3553(c)(2). Finally, we hold that, in light of 18 U.S.C. §§ 3742(f)(2) and (f)(3), the District
Court’s failure to explain the basis for its departure in the written judgment does not provide a
separate basis for remand in the circumstances presented.
Vacated and remanded.
COLLEEN P. CASSIDY, The Legal Aid Society, Federal Defender
Division, Appeals Bureau, New York, NY, for Defendant-Appellant.
JUSTIN S. WEDDLE , Assistant United States Attorney (Peter G.
Neiman, Assistant United States Attorney, of counsel; David N. Kelley,
United States Attorney for the Southern District of New York, on the
brief), United States Attorney’s Office for the Southern District of
New York, New York, NY, for Appellee.
JOSÉ A. CABRANES, Circuit Judge:
This appeal arises from a sentence imposed by the United States District Court for the
Southern District of New York (Colleen McMahon, Judge) after the Supreme Court’s June 24, 2004
decision in Blakely v. Washington, 542 U.S. 296 (2004), which raised doubt as to the constitutionality
of the then-binding U.S. Sentencing Guidelines, but prior to our August 12, 2004 decision in United
States v. Mincey, 380 F.3d 102 (2d Cir. 2004), vacated sub nom. Ferrell v. United States, 125 S. Ct. 1071
(2005), which directed district courts within the Circuit to continue applying the Sentencing
Guidelines in a mandatory fashion pending the Supreme Court’s resolution of United States v. Booker,
2
125 S. Ct. 738 (2005). We consider here whether the District Court’s practice of sentencing
defendant John Fuller “in the alternative”—that is, stating that the District Court would impose the
same sentence regardless of whether the U.S. Sentencing Guidelines were binding or not—during
the period after Blakely but before Booker was error in light of the subsequent teachings of the
Supreme Court and our related jurisprudence, and if so, whether such error is harmless.
With the benefit of hindsight, we hold that: (1) the District Court erred when sentencing
Fuller; (2) Fuller preserved the error by raising a Sixth Amendment objection prior to his sentencing;
and (3) the District Court’s error was not harmless. Accordingly, we remand the cause to the
District Court with instructions to vacate Fuller’s sentence and resentence him in conformity with
our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).
Furthermore, inasmuch as the District Court’s four-level upward departure calculation was
based upon the Court’s analogy between defendant’s bartering of drugs in exchange for firearms and
the sentencing enhancement prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines,
we conclude that the extent of the District Court’s departure was not an abuse of discretion. We
also hold that the District Court provided an adequate, on-the-record statement explaining its
upward departure, as required by 18 U.S.C. § 3553(c)(2). Finally, we hold that, in light of 18 U.S.C.
§§ 3742(f)(2) and (f)(3), the District Court’s failure to explain the basis for its departure in the
written judgment does not provide a separate basis for remand in the circumstances presented.
BACKGROUND
Defendant-appellant John Fuller pleaded guilty on May 10, 2001 to bail jumping, in violation
3
of 18 U.S.C. § 3146(a).1 On May 25, 2001, following a jury trial, Fuller was convicted of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).2 On December 6, 2001, in
satisfaction of both convictions, the District Court sentenced Fuller principally to 151 months’
imprisonment in part based on multiple upward departures pursuant to the U.S. Sentencing
Guidelines (“Sentencing Guidelines” or “Guidelines”), which the District Court then reasonably
understood to be binding.
Fuller appealed his judgment of conviction, arguing, inter alia, that the District Court erred in
its application of the Sentencing Guidelines. After affirming Fuller’s conviction, we vacated his
sentence on grounds not pertinent to the instant appeal and remanded the cause to the District
Court for resentencing. United States v. Fuller, 332 F.3d 60, 68 (2d Cir. 2003).
On July 14, 2004, in the immediate aftermath of the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004)—which held unconstitutional the State of Washington’s sentencing
1
18 U.S.C. § 3146(a) provides, in pertinent part, that
[w]hoever, having been released under this chapter knowingly . . . fails to appear before a
court as required by the conditions of release[ ] or . . . fails to surrender for service of
sentence pursuant to a court ord er[ ] sh all be pun ished as provid ed in sub section (b) of this
section.
18 U.S.C. § 3146(b) provides, in pertinent part, that
[t]he punishm ent fo r an offense under this section is . . . if the person w as released in
connection with a charge of, or while awaiting sentence, surrender for service of sentence, or
appeal or certiorari after conviction for . . . an offense punishab le by imprisonm ent for a
term of five years or more, a fine under this title or imprisonment for not more than five
years, or both[.]
2
18 U.S.C. § 922(g) provides, in pertinent part, that
[i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime
pun ishable by imp risonment fo r a term exceed ing one year [ ] . . . to ship o r transport in
interstate or foreign commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been shipped or transported
in interstate or foreign commerce.
4
scheme—but before the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005),
Judge McMahon filed an opinion in United States v. Einstman, 325 F. Supp. 2d 373 (S.D.N.Y. 2004),
in which she concluded that the Sentencing Guidelines were unconstitutional and that judges must
“return to indeterminate sentencing, in which [they] . . . consider all relevant factors and . . .
sentence the defendant anywhere between the statutory minimum (if there be one) and the statutory
maximum. . . .” Id. at 380-81. Accordingly, at Fuller’s resentencing hearing on August 5, 2004, the
District Court announced two sentences in the alternative: the first sentence assumed that the
Sentencing Guidelines were unconstitutional and therefore non-binding, and the second sentence
adhered to the Sentencing Guidelines as if they were constitutional and, hence, binding. Judge
McMahon stated on the record: “I am going to violate my usual rule and I am going to impose both
types of sentences. So that the Circuit is aware, that is what I decided to do.” Tr. of Sentencing
Hr’g, Aug. 5, 2004, at 18.
Assuming first that the Sentencing Guidelines were non-binding, the District Court
sentenced Fuller principally to 151 months’ imprisonment, which consisted of a ten-year term for
the firearm offense and a five-year term for the bail-jumping offense.3 Assuming alternatively that
the Guidelines were mandatory, the District Court imposed an identical sentence, arriving at 151
months of imprisonment after applying several enhancements and upward departures, including a
four-level upward departure pursuant to U.S.S.G. § 5K2.0 on the ground that Fuller had bartered
drugs in exchange for firearms. Id. at 21.
At his sentencing hearing, Fuller’s counsel raised an objection pursuant to Apprendi v. New
3
Following the method of sentencing we recommended in United S tates v. Fuller, 332 F.3d 60, 68 (2003), the
District Court specified that of the five-year term, twenty-nine months would run concurrently and thirty-one months
would run consec utively to the ten-year term , yielding a total of 151 months.
5
Jersey, 530 U.S. 466 (2000), referring to the Supreme Court’s statement that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. Fuller’s
counsel also objected on the ground that “sentencing in the alternative is illegal in and of itself.” Tr.
of Sentencing Hr’g, Aug. 5, 2004, at 25.
DISCUSSION
Fuller raises three interrelated claims on appeal. First, he asserts that notwithstanding the
District Court’s issuance of an “alternative” non-Guidelines sentence, the District Court’s sentence
did not conform to the requirements of United States v. Booker, 125 S. Ct. 738 (2005). Def.-
Appellant’s Supplemental Letter Br. of May 31, 2005, at 3. Fuller further argues that because he
properly preserved an objection to this error and because this error was not harmless, we should
vacate the District Court’s sentence and remand for resentencing in accordance with our opinion in
United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). See Def.-Appellant’s Supplemental Letter Br. of
May 24, 2005, at 1-8.
Second, Fuller requests, for the purpose of guiding such a remand, that we reject as
“unreasonable” the four-level upward departure that the District Court applied on the basis of what
it found to be clear and convincing evidence that Fuller had bartered drugs in exchange for firearms.
Id. at 6-7.
Third and finally, Fuller asserts that the District Court erred in failing to provide an adequate
statement—both on the record at sentencing and in its written order of judgment—explaining the
upward departures that it applied in arriving at Fuller’s sentence. See Appellant’s Br. at 12, 14.
6
I. B o o ke r Error
In United States v. Booker, 125 S. Ct. 738 (2005), the Supreme Court held that the mandatory
nature of the U.S. Sentencing Guidelines violated the Sixth Amendment. Id. at 749-50. In its
remedy opinion in Booker, the Court concluded that the Guidelines are now advisory, id. at 757, and
that the proper standard of review for sentences is “reasonableness,” see id. at 765-66. In United
States v. Crosby, 397 F.3d 103 (2d Cir. 2005), we explained that pre-Booker sentences, regardless of
their length, would “not be found reasonable” if (1) “a sentencing judge committed a procedural
error by selecting a sentence in violation of applicable [post-Booker] law” and (2) “that error is not
harmless and is properly preserved.” Id. at 114. Regarding the first prong of our post-Booker
inquiry—whether a district court committed procedural error—we held that “a sentencing judge
would commit a statutory error in violation of [18 U.S.C.] section 3553(a) if the judge failed to
‘consider’ the applicable Guidelines range . . . as well as other factors listed in section 3553(a), and
instead simply selected what the judge deemed an appropriate sentence without such required consideration.” Crosby,
397 F.3d at 115 (emphasis added).
The Government asserts that because the District Court “correctly anticipated Booker’s
holding that the Guidelines were advisory, and imposed a discretionary, non-Guidelines sentence,”
the District Court “committed no error at sentencing.” Appellee’s Supplemental Letter Br. of May
27, 2005, at 1. We disagree. When considering the possibility of non-binding Guidelines, the
District Court stated:
[M]y position on the Guidelines is that . . . either they exist in their entirety . . . or
they don’t exist at all; in which case, we revert to a pre-1986 sentencing scheme
under which a judge, in her discretion, can sentence the defendant anywhere
between the statutory minimum, if there be one, for the crime and the statutory
maximum defined in the traditional non-Blakely way.
7
Tr. of Sentencing Hr’g, Aug. 5, 2004, at 16. This prediction of the post-Booker sentencing
landscape turned out to be incorrect and inconsistent with our later conclusion in Crosby that “it
would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing
regime that existed before 1987 and exercise unfettered discretion to select any sentence within the
applicable statutory maximum and minimum.” Crosby, 397 F.3d at 113-14. Because the District
Court imposed its alternative non-Guidelines sentence on the assumption that the Guidelines
“don’t exist at all”—and thereby acted on a proverbial blank slate without explicitly considering all
the factors listed in 18 U.S.C. § 3553(a), including the Guidelines, see 18 U.S.C. § 3553(a)(4)(A), as
required by Crosby, see 397 F.3d at 111—we hold, once again with the benefit of hindsight, that the
District Court erred in formulating Fuller’s sentence.
By raising a Blakely objection to the compulsory application of the Sentencing Guidelines
prior to sentencing, Fuller preserved the error; accordingly, “the procedure for applying plain-error
analysis that we set forth in Crosby is inapplicable.” Fagans, 406 F.3d at 140-41. Instead, the “issue
upon review of the preserved error is whether we should affirm, if the Government has shown the
error to be harmless, or remand for resentencing, if such a showing has not been made.” United
States v. Lake, 419 F.3d 111, 113 n.2 (2d Cir. 2005).
In Crosby, we specifically considered and rejected the possibility, albeit in considered dicta,
that sentencing in the alternative prior to Booker would be harmless error, concluding that “even if a
judge, prior to Booker[ ], indicated an alternative sentence that would have been imposed if
compliance with the Guidelines were not required, that alternative sentence is not necessarily the
same one that the judge would have imposed in compliance with the duty to consider all of the
factors listed in section 3553(a).” Crosby, 397 F.3d at 118. We added that “such an alternative
8
sentence is not necessarily the same one that the judge would have imposed after presentation by
the Government of aggravating circumstances or by the defendant of mitigating circumstances that
existed at the time but were not available for consideration under the mandatory Guidelines
regime.” Id. We now adopt these conclusions and hold that the District Court’s method of
sentencing in the alternative—between the time of the Supreme Court’s landmark decisions in
Blakely and Booker, and before our August 12, 2004 decision in United States v. Mincey, 380 F.3d 102,
106 (2d Cir. 2004) (directing district courts to continue applying, in mandatory fashion, the
Sentencing Guidelines pending resolution of Booker)—was not harmless error.4
The Government contends that, in light of Judge McMahon’s opinion in United States v.
Einstman, 325 F. Supp. 2d 373 (S.D.N.Y. 2004), any error was harmless because “[t]he parties knew
[or should have known] in advance of sentencing that the District Court believed the Guidelines
were no longer mandatory, and thus that there were no ‘aggravating’ or ‘mitigating’ circumstances
that ‘were not available for consideration.’” Appellee’s Supplemental Letter Br. of May 27, 2005, at
8. The mere publication of a district judge’s pre-Booker views in connection with another case did
not, however, provide Fuller with sufficient opportunity to present arguments tailored specifically
to the post-Booker sentencing landscape. Nor can we say with any confidence “what considerations
counsel for both sides might have brought to the sentencing judge’s attention had they known that
they could,” as a matter of law, “urge the judge to impose a non-Guidelines sentence.” Crosby, 397
F.3d at 115.
Although we commend the care with which the District Court resentenced Fuller in August
4
While “we cannot say that it is likely that [the District Court] would have imposed a different sentence under
the post-Booker regim e,” we nevertheless conclude that the Government “ha s not shown that the possibility is so rem ote
as to render the sentencing error harmless.” Lake, 419 F.3d at 114.
9
2004 amidst uncertainty concerning the status of the Sentencing Guidelines, for the reasons stated
above, we remand to the District Court for resentencing in accordance with United States v. Fagans,
406 F.3d 138 (2d Cir. 2005).
II. Reasonableness of the District Court’s Upward Departure
Because 18 U.S.C. § 3553(a) requires a district court to consider, inter alia, the applicable
Guidelines range when formulating a sentence, we have noted that when we remand for
resentencing, it will often “be preferable to adjudicate [an outstanding] calculation issue promptly
so that subsequent sentencing proceedings will occur in light of a correct calculation.” Fagans, 406
F.3d at 141; see also United States v. Canova, 412 F.3d 331, 335 (2d Cir. 2005) (“Because the
reasonableness of a sentence, even under the discretionary regime recognized in Booker, depends in
part on a district court’s consideration of the Sentencing Guidelines, . . . a significant error in the
calculation or construction of the Guidelines may preclude affirmance.”). Recognizing the value of
reviewing a contested departure, even post-Booker, see United States v. Selioutsky, 409 F.3d 114, 118
(2d Cir. 2005), and mindful that both parties have requested that we do so in this case, see Def.-
Appellant’s Supplemental Letter Br. of May, 24, 2005, at 7-8; Appellee’s Supplemental Letter Br. of
May 27, 2005, at 9-10, we consider here whether the District Court, in calculating the applicable
Guidelines sentence, erred in applying a four-level upward departure for Fuller’s bartering of drugs
in exchange for firearms.5
Following Booker , on sentencing appeals, we review a district court’s factual determinations
for clear error, its legal conclusions de novo and its exercises of discretion with respect to departures
5
We note that “disposing of [Fuller’s] non-Sixth Amen dment claims prior to rem and forecloses future
challenges to his sentence on these grounds, though it does not foreclose reasonableness review of [Fuller’s] sentence on
other grounds.” United S tates v. Weisser, 417 F.3d 336, 346 (2d Cir. 2005).
10
for abuse of discretion. See Selioutsky, 409 F.3d at 118-19; see also United States v. Weisser, 417 F.3d
336, 346 (2d Cir. 2005) (“When reviewing a district court’s application of the Guidelines in the
post-Booker era, we examine questions of law de novo and issues of fact for clear error.”); United States
v. Garcia, 413 F.3d 201, 221-22 (2d Cir. 2005) (acknowledging that a clear error standard of review
continues to apply to appellate challenges to judicial fact-finding at sentencing after Booker). A
district court’s decision to depart pursuant to U.S.S.G. § 5K2.0 (providing that a court “may
depart”) is discretionary, see Selioutsky, 409 F.3d at 119, and we therefore review the departure at
issue here for abuse of discretion.
Because “[a]n error in determining the applicable Guideline range or the availability of
departure authority would be the type of procedural error that could render a sentence
unreasonable under Booker,” Selioutsky, 409 F.3d at 118, we decline to “forego such review on the
theory that the District Court would have imposed [the same] sentence as a non-Guidelines
sentence under the post-Booker regime, in which event any error in using departure authority to
select the sentence that was imposed would be harmless,” id. at 118 n.7.6
A district court abuses its discretion “when (1) its decision rests on an error of law (such as
application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its
decision—though not necessarily the product of a legal error or a clearly erroneous factual
finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc.,
252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted).
Where, as here, a defendant has failed to object to an alleged sentencing impropriety on the
6
We reiterate that upon remand, the District Court may “fairly consider policy statements concerning
departures and fairly decide to impose a non-Guidelines sentence without ‘definitively resolv[ing]’ close questions
regarding the ‘precise meaning or application of a [departure] policy statement.’” Canova, 412 F.3d at 358 n.28 (quoting
Crosby, 397 F.3d at 112) (bracketed text in Canova).
11
record in the district court, we review for plain error, requiring the defendant to establish “(1) error,
(2) that is plain, and (3) that affects substantial rights.” United States v. Dos Reis, 369 F.3d 143, 148
(2d Cir. 2004) (internal quotation marks and citation omitted) (alterations in original); see also United
States v. Molina, 356 F.3d 269, 277 (2d Cir. 2004) (recognizing that failure to preserve an objection
under 18 U.S.C. § 3553(c) gives rise to plain error review); but see United States v. Lewis, ___ F.3d
___, 2005 WL 2234105, at *3 (2d Cir. Sept. 15, 2005) (conducting plain error review where
defendant failed to raise an 18 U.S.C. § 3553(c) objection at sentencing, but commenting that
whether plain error review is required in such circumstances is “unclear”). “An error is ‘plain’ if it
is ‘clear’ or ‘obvious’ at the time of appellate consideration.” United States v. Thomas, 274 F.3d 655,
667 (2d Cir. 2001)(en banc).
Fuller does not challenge the District Court’s finding that he bartered drugs for firearms,
nor does he dispute that such a finding represented an appropriate basis for an upward departure
pursuant to U.S.S.G. § 5K2.0.7 Rather, Fuller contends that the extent of the District Court’s
departure—which raised the applicable Guidelines range from 78-97 months to 121-151
months—constituted an abuse of discretion because the District Court failed to provide any valid
“penalogical explanation” for its departure calculation. Def.-Appellant’s Br. at 12. According to
Fuller, the District Court based that calculation solely on its intention to “‘end up at the same place
where [it] ended up before.’” Id. at 11 (quoting Tr. of Sentencing Hr’g, Aug. 5, 2004, at 18-19).
On appeal, the Government asserts that the District Court’s four-level upward departure
was based upon the Court’s analogy between Fuller’s conduct and the conduct described in
7
Fuller’s co ncession in this re gard is consistent with our conclusion fo llowing F uller’s first appeal that “[s]im ply
because the District Court used the bartering activity for the wrong kind of depa rture is not a reason to preclud e its use
on remand for a perm issible type of departure.” Fuller, 332 F.3d at 67.
12
U.S.S.G. § 2K2.1(b)(5),8 see Appellees’ Br. at 32—namely, “possess[ion] or transfer[ ][of] any
firearm or ammunition with knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). Indeed, the
Government repeatedly urged the District Court—both in its pre-sentencing submissions and
during Fuller’s sentencing hearing—to adopt a four-level departure on this basis. See Gov’t’s
Resentencing Mem., at 14-15 (asserting that “Section 2K2.1(b)(5) of the Guidelines provides a
helpful measure of the seriousness of the combination of gun crimes with other felonies”); Tr. of
Sentencing Hr’g, Aug. 5, 2004, at 7 (recommending to the Court that “in determining the
magnitude of an upward departure . . . one helpful guide post would be the four-level enhancement
which is contained in Section 2K2.1 [of the Sentencing Guidelines]”).
After hearing the Government’s explanation for its recommended Guidelines
sentence—which included a four-level upward departure predicated on an analogy between
bartering drugs for firearms and committing felonies in connection with the possession or transfer
of firearms—the District Court confirmed that the resulting sentencing range would be 121 to 151
months (which reflected the requested four-level departure), stated“Okay,” and then proceeded to
ask the Government what sentence would be appropriate under an alternative, “indeterminate
sentencing scheme.” Tr. of Sentencing Hr’g, Aug. 5, 2004, at 8. Later in the proceeding, the Court
imposed the exact Guidelines sentence the Government had recommended, which included what it
described as a “four-level upward departure . . . based on the bartering of drugs as payment for
8
U.S.S.G. § 2K 2.1(b)(5) pro vides, in relevant part, that
[i]f the defendant used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transfe rred any firearm o r ammu nition with know ledge, intent, or reason to
believe that it would be used or possessed in connection with another felony offense, increase [the
applicable offense level] by 4 levels.
13
firearms.” Id. at 21. In these circumstances, we conclude that the District Court clearly
incorporated the Government’s reasoning that a four-level upward departure was appropriate based
on an analogy between Fuller’s conduct and the conduct described in § 2K2.1(b)(5).
Fuller maintains that the extent of the District Court’s four-level upward departure was
based solely on its intention “to achieve exactly the same sentence as that which had been vacated
on appeal.” Def.-Appellant’s Br. at 11. In making this claim, Fuller relies principally on the
following statement by the Court:
Obviously, my inclination was to depart upwardly, and the Circuit said I could not
do that horizontally on the basis that I chose; that is, I could not depart upwardly on
the Criminal History Category, but I could do so vertically on the offense level, and I
intend to do so. And I intend to do so by four levels, so that I end up at the same place
where I ended up before.
Tr. of Sentencing Hr’g, Aug. 5, 2004, at 18-19 (emphasis added). We reject Fuller’s argument that
this statement demonstrates that the District Court had a predetermined goal of arriving at the
same sentence it had imposed prior to Fuller’s first appeal. It is commonplace for a district judge
to be required to reconsider or explain more fully a sentencing decision on remand, and it is not
necessarily inappropriate, much less error, for a judge to impose the same sentence he arrived at
prior to appeal. In any event, in the circumstances presented here, we understand the District
Court’s statement merely as a comment on the sentencing range it had selected and not as an
articulation of its rationale. We have no reason to doubt the District Court’s assurance that it
applied “a four-level upward departure . . . based on the bartering of drugs as payment for
firearms.” Id. at 21.
Inasmuch as the District Court based its upward departure on an analogy to
U.S.S.G. § 2K2.1(b)(5)—which prescribes more severe punishment for the sale of firearms in
14
connection with committing another felony—we hold that the District Court’s reasoning was
“sufficient to justify the magnitude of the departure.” United States v. Campbell, 967 F.2d 20, 26 (2d
Cir. 1992) (internal quotation marks omitted). The practice of relying on analogous provisions of
the Sentencing Guidelines when calculating the proper extent of a departure is well established.
See, e.g., United States v. Amirault, 224 F.3d 9, 12 (1st Cir. 2000) (“A sentencing court is free to make
suitable comparisons and draw plausible analogies in considering whether to depart from the
guideline sentencing range.”); United States v. Kalady, 941 F.2d 1090, 1101 (10th Cir. 1991) (“A
sentence imposed based upon either extrapolation or analogy from the [G]uidelines will ordinarily
meet the requirements of proportionality and uniformity.”). The fact that particular conduct fails
to warrant a mandatory sentence enhancement does not preclude a court from imposing a
discretionary upward departure on the basis of that conduct. See United States v. Speenburgh, 990 F.2d
72, 76 (2d Cir. 1993) (“The authority for an adjustment does not inevitably carry the negative
implication that facts that fail to qualify for the adjustment are ineligible for a departure.”).
The four-level enhancement mandated by the Sentencing Commission for the conduct
described in U.S.S.G. § 2K2.1(b)(5) reflects the special danger that arises when guns are linked with
other criminal conduct—a danger and virtual truism that we have repeatedly acknowledged by
affirming sentence enhancements imposed under § 2K2.1(b)(5). See, e.g., United States v. Ortega, 385
F.3d 120, 123 (2d Cir. 2004); United States v. Martin, 78 F.3d 808, 812-13 (2d Cir. 1996). Fuller does
not challenge the strength of the analogy at issue here; rather, he rests on the argument that the
District Court chose a four-level departure solely for the purpose of arriving at the same sentence it
had previously imposed.
Because we conclude that Fuller’s conduct may be fairly analogized to the conduct
15
described in § 2K2.1(b)(5), and we are mindful of the need for “considerable deference” to district
courts’ determinations as to the extent of departures, United States v. Tropiano, 50 F.3d 157, 162 (2d
Cir. 1995), we hold that Fuller has not demonstrated that the District Court erred, much less plainly
erred or abused its discretion, in upwardly departing by four levels based on Fuller’s bartering of
drugs for firearms in connection with the offense for which he was convicted.
III. The District Court’s Statement of Reasons for its Upward Departure
Not only was the logic behind the District Court’s four-level upward departure apparent
from the context, but the District Court also provided an adequate, on-the-record statement
explaining its upward departure, as required by 18 U.S.C. § 3553(c). 9 As a panel of this Circuit
recently noted in United States v. Lewis, ___ F.3d ___, 2005 WL 2234105 (2d Cir. Sept. 15, 2005),
“18 U.S.C. § 3553(c), which Booker ‘left unimpaired,’” id. at *5 (quoting Crosby, 397 F.3d at 116),
requires “that a district court ‘at the time of sentencing, shall state in open court the reasons for its
imposition of the particular sentence,’” id. (quoting 18 U.S.C. § 3553(c)). Furthermore, § 3553(c)(2)
provides that if a sentence is outside the applicable Guidelines range, the sentencing court must
state “the specific reason for the imposition of a sentence different from that described.” 18 U.S.C.
§ 3553(c)(2). A district court’s failure to comply “with the general provisions of § 3553(c) . . . , let
alone the specific requirements of § 3553(c)(2) regarding [the explanation of reasons for] departures
9
18 U.S.C. § 3553(c) provides, in relevant part, that
[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the
particular sentence, and, if the sentence—
...
(2) is not of the kind, or is outside the range [provided in the Guidelines,] the specific reason
for the imposition of a sentence different from that described, which reasons must also be
stated with specificity in the written order of judgment and commitment except to the extent
the court relies upon statements received in camera. . .
16
from recommended sentencing ranges” constitutes “plain error,” even when the length of the
resulting sentence would otherwise be reasonable. Id. at *6. Lewis held that such error affects a
defendant’s “substantial rights” by denying him “the right to argue more effectively . . . whether . . .
a sentence is ‘reasonable.’” Id. at *7.
The District Court relied on a reasonable analogy between Fuller’s conduct and the conduct
described in U.S.S.G. § 2K2.1(b)(5), and explicitly stated on the record that the departure was
“based on the bartering of drugs as payment for firearms.” Tr. of Sentencing Hr’g, Aug. 5, 2004, at
21. Accordingly, we hold that the District Court provided an adequate oral statement concerning
its specific reasons for imposing the sentence that it did. Although preferably the District Court
would have provided more detail concerning the extent of its departure, we do not consider the
absence of that detail an independent basis for remand where, as here, the District Court’s
statement was sufficient to provide Fuller of “a platform upon which to build an argument that
[his] sentence is unreasonable.” Lewis, 2005 WL 2234105, at *9.
Finally, Fuller contends that the District Court erred in failing to provide a written
statement of its reasons for applying an upward departure, as required by 18 U.S.C. § 3553(c)(2).
Def.-Appellant’s Br. at 14. In United States v. Santiago, 384 F.3d 31 (2d Cir. 2004), we read 18 U.S.C.
§§ 3742(f)(2) and (f)(3)10 in accordance with their plain language to suggest that so long as “we
10
18 U.S.C. § 3742(f) provides, in relevant part, that
[i]f the cou rt of appeals determines that—
(1) the sentence was imposed in violation of law or imposed as a result of an incorrect application of the
sentencing gu idelines, the court shall rem and the case for further sentencing proceed ings . . . ;
(2) the sentence is outside the applicable guideline range and the district court failed to provide the required
statem ent of reasons in the order of judgm ent and com mitme nt, or the de parture is base d on an im permissible
factor, or is to an unreasonable degree, or the sentence was imposed for an offense for which there is no
applicable sentencing guideline and is plainly reasonable, it shall state specific reasons for its conclusions and—
17
ultimately decide that a sentence is neither ‘too high’ . . . nor ‘too low’ . . ., we do not have any
obligation to remand” in cases where the district court has failed to provide a separate written
explanation for its departures. Id. at 36-37.11 For reasons unstated, however, we declined to
interpret these statutory provisions definitively.
Our sister circuits that have confronted this issue have unanimously held, as a matter of
statutory interpretation, that where a reviewing court determines, based upon the statements of the
district court in the record, that an upward departure is otherwise reasonable, the district court’s
failure to provide a written explanation in the order of judgment is not a separate cause for remand.
See United States v. Cooper, 394 F.3d 172 (3d Cir. 2005) (“We agree with the other Courts of Appeal[s]
that have concluded that failing to provide a written explanation for a departure is not cause for
remand if the departure is otherwise permissible and the district court’s reasoning is persuasive.”);
United States v. Daychild, 357 F.3d 1082, 1107-08 (9th Cir. 2004) (holding, based on the language of
18 U.S.C. § 3742(f), that remand is not required in these circumstances); United States v. Orchard, 332
F.3d 1133, 1141 n.7 (8th Cir. 2003) (same).
We now join our sister circuits in holding that where a reviewing court determines that a
departure is neither “too high” nor “too low” within the meaning of 18 U.S.C. § 3742 (f)(2), a
(A) if it determines that the sentence is too high . . . it shall set aside the sentence and reman d the case
...;
(B) if it determines that the sentence is too low . . . it shall set aside the sentence and reman d the case
...;
(3) the sentence is not described in paragraph (1) or (2), it shall affirm the sentence.
11
As we noted in Santiago, interpreting 18 U.S.C. § 3742(f)(1) to imply that “a district court’s failure to provide a
written statement of reasons qualifies as a violation of law that automatically requires a remand” would render the
statutory language in 18 U.S.C. § 3742(f)(2) “entirely superfluous.” Santiago, 384 F.3d at 37. Accordingly, we rejected as
“disfavored” that reading of § 3742 (f)(1) on the ground that it “violat[es] a basic tenet of statutory interpretation.” Id.
(quoting DeM aria v. Andersen, 318 F.3d 170, 177 (2d Cir. 2003)) (alteration in original).
18
district court’s failure to include in the written judgment an explanation for its departure does not
provide an independent basis for remand. See 18 U.S.C. § 3742(f)(3). Nonetheless, we note that
for the purpose of facilitating reasonableness review, the better practice is for the district court to
record in its written order of judgment an explanation for all Guidelines departures.
CONCLUSION
In sum, we hold that:
(1) despite sentencing Fuller “in the alternative”—that is, in part on the assumption that the
Sentencing Guidelines were not binding—the District Court erred in not correctly predicting that it
would be required to consider all 18 U.S.C. § 3553(a) factors, as later specified by United States v.
Crosby, 397 F.3d 103 (2d Cir. 2005);
(2) Fuller preserved this error by raising an Apprendi objection prior to his sentencing;
(3) neither the District Court’s mandatory application of the Sentencing Guidelines nor its
alternative, purely discretionary, sentencing amounted to harmless error;
(4) inasmuch as the District Court’s four-level upward departure was based upon its analogy
between Fuller’s bartering of drugs in exchange for firearms and the sentencing departure
prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines, the District Court’s departure
was neither plain error nor an abuse of discretion;
(5) the District Court adequately stated in open court the specific reason for its upward
departure from the Guidelines range, in satisfaction of 18 U.S.C. § 3553(c); and
(6) in light of 18 U.S.C. §§ 3742(f)(2) and (f)(3), the District Court’s failure to explain its
departure in the written judgment does not provide a separate basis for remand in the
circumstances presented.
19
* * *
For the reasons stated above, we REMAND the cause to the District Court with
instructions to vacate Fuller’s sentence and resentence him in conformity with this opinion and our
opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).
20