United States v. Knows His Gun ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-30302
v.
 D.C. No.
CR-03-00094-RFC
SYLVESTER NORMAN KNOWS HIS
GUN, III, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Submitted December 5, 2005*
Seattle, Washington
Filed February 15, 2006
Before: Ronald M. Gould and Marsha S. Berzon,
Circuit Judges, and William W Schwarzer,** District Judge.
Opinion by Judge Gould
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1739
1742 UNITED STATES v. KNOWS HIS GUN
COUNSEL
Anthony R. Gallagher and Robin Hammond, Federal Defend-
ers of Montana, Billings, Montana, for the defendant-
appellant.
William M. Mercer, United States Attorney, and Marcia Herd,
Assistant United States Attorney, Billings, Montana, for the
plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Defendant Sylvester Knows His Gun, III (“Knows His
Gun”) appeals the district court’s imposition of his sentence,
contending that two sentencing enhancements violated the
Sixth Amendment because the factual basis for them was not
proven to a jury or admitted by Knows His Gun. See United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 756, 160 L.
Ed. 2d 621 (2005). He also seeks a remand under United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc),
contending that the district court imposed the sentence under
a mandatory regime without adequate consideration of all of
the factors listed in 18 U.S.C. § 3553(a). We have jurisdiction
under 28 U.S.C. § 1291 and we affirm the sentence imposed
on Knows His Gun.
I
Knows His Gun was indicted by a grand jury on July 17,
2003, on one count of aggravated sexual assault of a child in
UNITED STATES v. KNOWS HIS GUN 1743
violation of 18 U.S.C. §§ 1153 and 2241(c). Knows His Gun
had admitted under police questioning that he had sexually
assaulted his younger nephew. On January 30, 2004, Knows
His Gun pled guilty to the charged count. During the change
of plea hearing, Knows His Gun admitted that he had engaged
in improper sexual touching of the child. He admitted that the
victim was “pretty young,” estimating him to be about “4 or
5 years old.” The district court accepted Knows His Gun’s
guilty plea based on these admissions.
Knows His Gun was sentenced on July 8, 2004. Using the
2003 version of the U.S. Sentencing Guidelines Manual
(“U.S.S.G.”), the district court imposed three “Specific
Offense Characteristic” enhancements to Knows His Gun’s
sentence: a two-level increase because “the victim was . . . in
the custody, care, or supervisory control of the defendant,”
U.S.S.G. § 2A3.1(b)(3)(A) (2003); a four-level increase
because the victim of the criminal sexual abuse was under
twelve years old, U.S.S.G. § 2A3.1(b)(2)(A); and a two-level
increase because Knows His Gun “should have known that
[the] victim of the offense was a vulnerable victim,” U.S.S.G.
§ 3A1.1(b)(1).
Knows His Gun objected at his sentencing hearing to both
of the two-level enhancements imposed under U.S.S.G.
§ 2A3.1(b)(3)(A) and U.S.S.G. § 3A1.1(b)(1),1 arguing that
they were based on facts not admitted by the defendant or
proven to a jury. Knows His Gun also objected to the validity
and constitutionality of the Guidelines, arguing that the
Supreme Court’s opinion in Blakely v. Washington, 542 U.S.
296 (2004), rendered the Sentencing Guidelines unconstitu-
tional. The district court overruled the first objection by hold-
ing that Knows His Gun admitted the factual basis of all
enhancements during the change of plea hearing. In response
to Knows His Gun’s objection to the Guidelines as a whole,
1
At the sentencing hearing, Knows His Gun withdrew his objection to
the four-level enhancement under U.S.S.G. § 2A3.1(b)(2)(A).
1744 UNITED STATES v. KNOWS HIS GUN
the district court stated that it would impose an alternate sen-
tence in the event that the Guidelines were later held unconsti-
tutional. The district court stated that, in formulating this
alternate sentence, the court “will consider the guidelines as
providing useful instruction on the appropriate sentence,
although they will not be given the force of law.” The district
court reasoned that it would consider the Guidelines for this
alternate sentence because it believed that the “Sentencing
Commission has carefully and thoughtfully developed the
guidelines over many years, and they generally produce sen-
tences that accord with not only the public’s but the Courts’
view of just punishment.” The district court first issued a pri-
mary sentence of 132 months followed by supervised release
on defined conditions. The sentence length was within the
applicable Guidelines range of 121 to 151 months. The alter-
nate sentence imposed by the district court had imprisonment
length and supervised release conditions identical to the pri-
mary sentence.
II
[1] Knows His Gun asserts that the challenged enhance-
ments increased his sentence based on facts not admitted by
him or proven to a jury beyond a reasonable doubt and there-
fore in violation of the Sixth Amendment.2 The United States
Supreme Court, after holding that the mandatory Sentencing
Guidelines as constituted violated the Sixth Amendment, sev-
ered from the Sentencing Reform Act “the provision that
requires sentencing courts to impose a sentence within the
applicable Guidelines range (in the absence of circumstances
that justify a departure) and the provision that sets forth stan-
dards of review on appeal, including de novo review of depar-
2
“This court reviews the district court’s interpretation of the Sentencing
Guidelines de novo, the district court’s application of the Sentencing
Guidelines to the facts of this case for abuse of discretion, and the district
court’s factual findings for clear error.” United States v. Kimbrew, 406
F.3d 1149, 1151 (9th Cir. 2005).
UNITED STATES v. KNOWS HIS GUN 1745
tures from the applicable Guidelines range.” Booker, 125
S. Ct. at 764 (citation omitted). The Guidelines as a whole
must still be considered by the district court in formulating a
sentence; however, they are not to be applied in a mandatory
fashion. See United States v. Menyweather, 431 F.3d 692, 696
(9th Cir. 2005).
[2] We have previously addressed how the Guidelines are
to be considered after Booker: “A constitutional infirmity
arises only when extra-verdict findings are made in a manda-
tory guidelines system.” Ameline, 409 F.3d at 1078. “There-
fore, if a particularly prescient sentencing judge, pre-Booker,
had made and used the same extra-verdict findings under the
same mandatory guidelines regime, but made clear that he
was treating the Guidelines as advisory rather than binding,
no Sixth Amendment violation would have occurred under
Booker.” Id. at 1077.
Although the district court imposed the primary sentence
for Knows His Gun based on its calculation of the Sentencing
Guidelines, the district court also imposed an alternate sen-
tence for Knows His Gun, for which the district court stated
that it would not be bound by the Guidelines, but would use
the Guidelines as “useful instruction.” The district court rec-
ognized that for this alternate sentence, it would have discre-
tion to impose any sentence within the statutory range.
Other circuits have held that a defendant’s sentence does
not violate the Sixth Amendment under Booker if the district
court accurately predicted the outcome of Booker in an alter-
nate sentence.3 See United States v. Bryant, 420 F.3d 652, 655
3
The D.C. Circuit notably recognized that courts have either analyzed
alternate sentences as a means to prevent Booker error in the sentence or,
alternatively, they begin by “assuming that Booker error in a district
court’s primary sentence constitutes error in the judgment, and then asking
whether the court’s pronouncement of a lawful alternative sentence ren-
ders that error harmless.” United States v. Simpson, 430 F.3d 1177, 1190
1746 UNITED STATES v. KNOWS HIS GUN
(7th Cir. 2005) (“There was nothing wrong with the judge’s
attempt to anticipate the state of the federal guidelines and
render a sentence accordingly, particularly in light of Blakely
and this court’s Booker opinion — both of which cast signifi-
cant doubt on the continued viability of the federal sentencing
scheme as it stood.”).
[3] We hold that a sentence does not contain constitutional
Booker error if the district court provided an alternative sen-
tence, or a rationale for the primary sentence, that correctly
anticipated the holding of Booker and exercised discretion in
imposing a sentence within the statutory range. Because we
hold that the district court here correctly predicted that it was
not bound by the Guidelines, Knows His Gun’s sentence did
not contain a Sixth Amendment violation under Booker that
would have resulted from extra-verdict findings in a manda-
tory guidelines system.
III
[4] Knows His Gun also seeks a remand under Ameline
based on nonconstitutional Booker error. Nonconstitutional
Booker error may result if the district court did not adequately
consider the factors listed in 18 U.S.C. § 3553(a), including
consideration of the Sentencing Guidelines, in imposing a dis-
cretionary sentence. See Booker, 125 S. Ct. at 766 (“Section
3553(a) remains in effect, and sets forth numerous factors that
guide sentencing.”).
(D.C. Cir. 2005); see also United States v. Porter, 417 F.3d 914, 917 (8th
Cir. 2005) (“In some circumstances, an alternative sentence can render a
Booker error harmless. Or perhaps more precisely, an alternative sentence
can demonstrate that the district court’s imposition of sentence involved
no error at all, because in one of the alternatives, the sentence was
imposed consistent with Booker.” (citation omitted)); United States v. Hill,
411 F.3d 425, 426 (3d. Cir. 2005) (holding that where “a District Court
clearly indicates that an alternative sentence would be identical to the sen-
tence imposed under the Guidelines, any error that may attach to a defen-
dant’s sentence under Booker is harmless”).
UNITED STATES v. KNOWS HIS GUN 1747
Although Knows His Gun objected at sentencing “to the
validity and constitutionality of the guidelines” based on
Blakely, he did not object on the ground that the district court
did not sufficiently address and apply the factors listed in
§ 3553(a). See United States v. Dowd, 417 F.3d 1080, 1091
(9th Cir. 2005) (“Understandably, the defendant did not raise
this statutory error before the district court, and we therefore
apply plain error review.”), cert. denied, 126 S. Ct. 816(2005). We therefore review his claim of nonconstitutional
Booker error for plain error.
“Plain error is ‘(1) error, (2) that is plain, and (3) that
affects substantial rights.’ ” Ameline, 409 F.3d at 1078 (quot-
ing United States v. Cotton, 535 U.S. 625, 631 (2002)). “If
these three conditions of the plain error test are met, an appel-
late court may exercise its discretion to notice a forfeited error
that (4) ‘seriously affects the fairness, integrity, or public rep-
utation of judicial proceedings.’ ” Id. (quoting Cotton, 535
U.S. at 631).
We must first determine whether there was any Booker
statutory error in the sentence of Knows His Gun before we
can determine whether, in light of the other elements for plain
error, the defendant was entitled to a limited remand under Ame-
line.4 To comply with the requirements of Booker, the district
court must have sufficiently considered the Guidelines as well
as the other factors listed in § 3553(a). This requirement does
not necessitate a specific articulation of each factor sepa-
rately, but rather a showing that the district court considered
the statutorily-designated factors in imposing a sentence. See
United States v. Delgado, 357 F.3d 1061, 1071 (9th Cir.
4
The limited remand procedure set forth in Ameline applies to both con-
stitutional and nonconstitutional Booker error. United States v. Moreno-
Hernandez, 419 F.3d 906, 916 (9th Cir. 2005) (“We conclude that defen-
dants are entitled to limited remands in all pending direct criminal appeals
involving unpreserved Booker error, whether constitutional or nonconsti-
tutional.”).
1748 UNITED STATES v. KNOWS HIS GUN
2004) (“District courts must provide defendant-specific rea-
sons for imposing a certain sentence to comply with
§ 3553.”); United States v. Johnson, 998 F.2d 696, 698 (9th
Cir. 1993) (stating that § 3553(a) provides “a list of factors to
guide the district court’s discretion rather than a checklist of
requisites”).
[5] In formulating the primary sentence under the manda-
tory guidelines system, the district court in this case had
already and explicitly considered many of the factors listed in
§ 3553(a), stating that the sentence of 132 months “would
meet the purpose of sentencing, which is punishment, deter-
rence, rehabilitation, and community protection.” The district
court also stated that it “considered the nature and circum-
stances of the instant offense” and imposed a sentence that
“accurately reflects the seriousness and detrimental effects of
the crime.” Because the district court considered the Guide-
lines in an advisory manner for the alternate sentence, these
§ 3553(a) factors, such as punishment, deterrence, rehabilita-
tion, and community protection, which were incorporated
within the primary sentence, were necessarily considered in
formulating the identical alternate sentence that the district
court gave. The court gave that sentence on the premise that
mandatory Guidelines were unconstitutional and that it would
treat the Guidelines as discretionary, viewing them as “useful
instruction.” The district court did not assume that it would
have unfettered discretion after Booker to choose any sen-
tence without guidance. Rather, we conclude that the district
court’s alternate characterization of the Guidelines as “useful
instruction” supports that the district court’s alternate sen-
tence proceeded under a constrained discretion, illuminated
by the Guidelines and the analysis of § 3553(a) factors that
the district court had already reviewed. See United States v.
Fuller, 426 F.3d 556, 560 (2d Cir. 2005) (holding that an
identical alternate sentence was impermissible under Booker
“[b]ecause 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
UNITED STATES v. KNOWS HIS GUN 1749
slate without explicitly considering all the factors listed in 18
U.S.C. § 3553(a), including the Guidelines”); Porter, 417
F.3d at 917 (“We cannot say that the court contemplated an
advisory guidelines system under which it was required to
consider the advisory guideline range as one factor among
others listed in 18 U.S.C. § 3553(a).”).
[6] The district court also stated that the alternate sentence
was imposed after “consideration of all relevant evidence”
and its “view of just punishment.” This articulation of two of
the factors listed in § 3553(a) in imposing the alternate sen-
tence, in addition to its previous articulation of other
§ 3553(a) factors when the district court imposed the primary
sentence, reinforces our view that the district court adequately
considered § 3553(a) factors. Therefore, the district court val-
idly imposed the alternate sentence on Knows His Gun after
taking into account the Guidelines as well as other sentencing
goals. See Booker, 125 S. Ct. at 764. We conclude that the
district court did not violate any post-Booker statutory
requirements in its formulation of the alternate sentence.
Knows His Gun argues in supplemental briefing that a
remand is appropriate so that he can “exercise his right to
allocution unencumbered by the mandatory nature of the
Guidelines” and also introduce evidence of other factors, such
as “background, character and conduct,” which were not rele-
vant under a mandatory Guidelines regime. However, the dis-
trict court announced at the beginning of the sentencing
hearing its intention to provide an alternate sentence not dic-
tated by the Guidelines. Therefore, Knows His Gun had the
opportunity to exercise any right of allocution during the
hearing with the understanding that the district court would
not be encumbered by the mandatory Guidelines. Neither
Knows His Gun nor his counsel made a request during the
sentencing hearing to present additional information that was
not relevant under the Guidelines. See Simpson, 430 F.3d at
1188 (“The flaw in Simpson’s general argument is that,
although consideration of some mitigating factors was indeed
1750 UNITED STATES v. KNOWS HIS GUN
barred (or limited) under the mandatory Guidelines regime,
the alternative sentencing methodology employed by his sen-
tencing court did not treat the Guidelines as mandatory.”
(citation omitted)). Because Knows His Gun did not suggest
any additional factors at the time of sentencing, we cannot say
that there was plain error when the district court did not con-
sider factors that were not raised by defendant. See id. at 1189
(“Given the multitude of factors potentially relevant in a dis-
cretionary sentencing scheme, we must be particularly cau-
tious in finding plain error when trial counsel has failed to
suggest a particular factor, lest we end up remanding when-
ever appellate counsel asserts a factor her predecessor did
not.”).
AFFIRMED.