United States v. Woods , 440 F.3d 255 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 04-11058
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY WAYNE WOODS,
Defendant-Appellant.
__________________
Appeal from the United States District Court
For the Northern District of Texas
__________________
Before DAVIS, SMITH and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Gregory Wayne Woods pleaded guilty to a single count of bank
fraud in violation of 18 U.S.C. § 1344. He appeals his 46-month
sentence pursuant to United States v. Booker, 125 S. Ct. 738(2005). Because Woods preserved his claim of error and the
Government cannot demonstrate the error was harmless, we VACATE
Woods’ sentence and REMAND to the district court for re-
sentencing.
1
I.
On May 7, 2004, Woods pleaded guilty to one count of bank
fraud, prohibited by 18 U.S.C. § 1344. A pre-sentence report
(“PSR”) calculated Woods’ total offense level at 19, including a
seven-level increase because the amount of loss was between
$120,000 and $200,000, a two-level increase because the offense
involved more than minimal planning, and a four-level increase
because of Woods’ role as an organizer or leader who recruited
and instructed participants in a criminal activity that involved
five or more participants. A total offense level of 19 combined
with a criminal history category III resulted in a recommended
Sentencing Guideline range of 37 to 46 months of imprisonment.
In addition, the PSR recommended an upward departure because
Woods’ criminal history score under-represented the seriousness
of his criminal history or the likelihood that he would commit
additional crimes.
Woods objected to the PSR on the basis of Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 124
S. Ct. 2531, 2537 (2004), arguing that the findings which
resulted in enhancements totaling 13 levels were based on facts
to which he had not admitted nor had been found by a jury.
Nonetheless, the district court adopted the factual findings of
2
the PSR and concluded that the 13 level enhancement was
appropriate.1 The court did not adopt the PSR’s recommendation
to depart upwardly, however, but stated: “Well, it’s a close
call, but I’m not going to upwardly depart in this case. I am
going to impose a sentence at the top of the guideline range.”
The district court sentenced Woods to 46 months in prison, the
top of the applicable guideline range including the enhancements.
The court also ordered Woods’ sentence to run consecutively to
any sentence imposed by the state court in an unrelated criminal
proceeding then pending against Woods’, ordered Woods to pay
$129,324 in restitution, and ordered Woods to serve three years
of supervised release.
Woods now appeals his sentence, arguing that the Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738(2005), confirms that the sentence imposed upon him by the
district court violated the 6th Amendment. The Government
concedes, as it must, that the district court erred by enhancing
Woods’ offense level under the pre-Booker mandatory guidelines
system based on facts to which Woods did not admit and not found
1
Woods objected to the facts set forth in the PSR supporting
the enhancements to which he did not admit. The district
court overruled the objection. Woods does not challenge the
sufficiency of the evidence for the court's factual findings
or otherwise object to the enhancements themselves on appeal.
3
beyond a reasonable doubt by a jury. The Government argues,
however, that such an error was harmless, based principally on
the district court’s decision to impose a sentence at the top of
the applicable guidelines range.
II.
When a Sixth Amendment claim under Booker “is preserved in
the district court by an objection, we will ordinarily vacate the
sentence and remand, unless we can say the error is harmless
under rule 52(a) of the Federal Rules of Criminal Procedure.”
United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005); see also United States v. Olano,
507 U.S. 725, 734 (1993) (noting that harmless error standard
applies when defendant makes timely objection to error).
“Harmless error is ‘[a]ny defect, irregularity, or variance
that does not affect substantial rights’ of the defendant, and
‘arises when the mistake fails to prejudice the defendant.’”
United States v. Akpan, 407 F.3d 360, 376 (5th Cir.2005) (quoting
FED. R. CRIM. P. 52(a)). “[T]he government must bear the burden
of demonstrating that the error was harmless by demonstrating
beyond a reasonable doubt that the federal constitutional error
of which the defendant complains did not contribute to the
sentence that he received.” Id. at 377 (citations omitted); see
4
also Olano, 507 U.S. at 734 (noting that the inquiry to determine
prejudice is the same between plain error and harmless error, but
that the defendant, rather than the government, bears the burden
of persuasion with respect to prejudice under plain-error
review); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967) (holding that “before a federal constitutional
error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt”). Put
another way, an error is deemed harmless only if the government
proves beyond a reasonable doubt that it did not affect the
outcome of the district court proceedings. See United States v.
Pineiro, 410 F.3d 282, 285(5th Cir. 2005).
A.
The Government points to the fact that the district court
sentenced Woods to 46 months of imprisonment, the top of the
guidelines-determined range, in an attempt to meet its burden
under the harmless error standard. This court has previously
addressed the effect of maximum and minimum sentences within the
guidelines-determined range only in the context of plain-error
review. In United States v. Rodriguez-Gutierrez, 428 F.3d 201(5th Cir. 2005), this court observed that prior cases had given
varying weight to the relationship between the actual sentence
5
imposed and the range of sentences provided by the Guidelines,
and noted that “[s]entences that fall at the absolute maximum of
the Guidelines provide the strongest support for the argument
that the judge would not have imposed a lesser sentence.” Id. at
204. Similarly, “sentences following at the absolute minimum of
the Guidelines provide the strongest support for the argument
that the judge would have imposed a lesser sentence.” Id. at
205. However, we cautioned, “we do not suggest that a defendant
sentenced at the absolute maximum of the range provided by the
Guidelines will never be able to show that his substantial rights
were affected.” Id.2
2
Other Circuits have also found a sentence imposed at the top
of the Guidelines-determined range to be persuasive evidence
against substantial prejudice under plain-error review. See
United States v. Brennick, 405 F.3d 96, 101-02 (1st Cir. 2005)
(“Given the court's exercise of discretion to sentence at the
most severe end of the range and its assertion that it would
have given a more severe sentence if it had the latitude to do
so, we can see no reasonable probability that the court would
have sentenced more leniently had it understood that it was
not constrained by the Guidelines.”); United States v.
Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir. 2005) ("When,
under a mandatory guidelines regime, a sentencing court has
elected to sentence the defendant substantially above the
bottom of the range, that is a telling indication that the
court, if acting under an advisory guidelines regime, would in
all likelihood have imposed the same sentence."); United
States v. Mozee, 405 F.3d 1082, 1091-92 (10th Cir. 2005)
(“Because the court decided to maximize punishment rather than
exercise leniency where it had discretion, there is no basis
for us to assume Mr. Mozee would receive a lesser sentence if
he were resentenced under a discretionary sentencing regime in
which the district court is required to ‘consider’ the
guidelines when it exercises its discretion.”), cert. denied,
6
The imposition of a sentence at the maximum end of the
Guidelines-determined range, however, is less persuasive when
considered under the harmless-error standard. When a defendant
fails to preserve Booker error with an objection in the district
court, the sentence imposed is reviewed for plain error, and the
burden is on the defendant to demonstrate “a probability
sufficient to undermine confidence in the outcome.” Id. at
203. When reviewing for harmless error, however, the Government
bears the burden of proving beyond a reasonable doubt that the
Booker error did not affect the outcome of the district court
proceedings. See Pineiro, 410 F.3d at 285.
Although a judge sentencing a defendant at the top of the
applicable range under the pre-Booker sentencing regime may be
enough to prevent that defendant from undermining confidence in
the outcome when reviewed for plain error, it does not follow
that the same sentence is enough to satisfy the burden on the
Government to prove beyond a reasonable doubt that the sentence
would not have been different under the post-Booker advisory
regime. Instead, the Government must shoulder the heavy burden
of demonstrating that the district court would not have imposed a
different sentence under the advisory regime—in essence, the
126 S. Ct. 253 (2005).
7
Government must prove a negative. Such proof is certainly not
impossible, but where the Government’s principal evidence is a
sentence at the top of the range determined by the Guidelines
under a mandatory sentencing regime, the Government has not
carried its burden.
Our conclusion that a sentence imposed at the top of the
Guidelines-determined range might be sufficient to prevent a
defendant from prevailing under plain-error review, but not
sufficient to demonstrate that a Booker error was harmless beyond
a reasonable doubt is consistent with the law of at least two
other Circuits. The Seventh Circuit has recognized the same
distinction in its decisions. That court found, like this Court
found in Rodriguez-Gutierrez, that a sentence at the top of the
Guidelines-determined range, especially when combined with an
upward departure, prevented a defendant from prevailing under
plain-error review. See United States v. Cunningham, 405 F.3d
497, 504-05 (7th Cir. 2005). However, the Seventh Circuit has
also concluded that under the harmless-error standard “even a
term of imprisonment at the top of the range ‘does not rule out
the possibility that the judge might have imposed a lesser
sentence had he known that the Guidelines did not bind him.’”
United States v. Carroll, 412 F.3d 787, 794 (7th Cir. 2005)
8
(quoting United States v. Della Rose, 403 F.3d 891, 907 (7th
Cir.2005)).
Our decision is also consistent with the law of the Second
Circuit. In United States v. Lake, 419 F.3d 111 (2d Cir. 2005),
that court addressed the argument made by the Government that a
sentence well above the bottom of the Guidelines-determined range
demonstrated that any Booker error was harmless beyond a
reasonable doubt. The court disagreed, and found that such an
argument overlooks three important aspects of sentencing under
the post-Booker regime:
First, the fact that a judge selects a sentence within
a guideline range that the judge thought he was
required to apply does not necessarily mean that the
same sentence would have been imposed had the judge
understood the Guidelines as a whole to be advisory.
The applicable guideline range provides the frame of
reference against which the judge chooses an
appropriate sentence. In this case, for example, Judge
Block might have thought that once the Commission
specified the range it deemed appropriate for offense
conduct like Lake's, the details of Lake's offense
conduct were sufficiently serious to warrant punishment
somewhat high in that range, but he might also have
thought that a somewhat lower sentence would have been
appropriate if he was selecting a sentence without
regard to a Commission-prescribed range. Second,
although even before Booker, a sentencing judge was
obliged to consider all the factors set forth in 18
U.S.C. § 3553(a), the required use of one of those
factors--the Guidelines--rendered of “uncertain import”
the significance of the other factors. Now, without
the mandatory duty to apply the Guidelines,
consideration of the other section 3553(a) factors
“acquires renewed significance,” and might result in a
9
different sentence. Third, absent the strictures of
the Guidelines, counsel would have had the opportunity
to urge consideration of circumstances that were
prohibited as grounds for a departure.
Id. at 114. As the Second Circuit stated in Lake, we cannot say
it is likely that the district court in this case would have
imposed a different sentence upon Woods under the post-Booker
sentencing regime, “but the Government has not shown that the
possibility is so remote as to render the sentencing error
harmless.” Id.3
B.
The Government next argues that the district court’s order
that the federal sentence imposed run consecutively with any
sentence imposed in Woods’ pending state criminal proceedings
demonstrates that the Booker error was harmless. This court has
3
The Tenth Circuit has disagreed with this approach, and in
United States v. Riccardi, that court held that a
constitutional Booker error was harmless where the district
court sentenced at the top of the range. See 405 F.3d 852,
874-75 (10th Cir. 2005), cert. denied, 126 S. Ct. 299 (2005).
The Tenth Circuit’s decision in Riccardi, however, provides
little analysis in support of this conclusion, instead relying
on the Sixth Circuit opinion in United States v. Bruce, an
opinion that concludes only that a sentence at the top end of
the Guidelines-determined range was probative under the plain-
error standard, not the harmless error standard. Moreover,
the Sixth Circuit’s opinion on these grounds in Bruce was
later vacated, and the defendant’s sentence vacated and
remanded for resentencing. See U.S. v. Bruce, 396 F.3d 697,
720 (6th Cir. 2005), vacated, 405 F.3d 1034 (6th Cir. Apr 07,
2005). We find the Tenth Circuit’s approach less persuasive
than that followed by the Second and Seventh Circuits.
10
recognized that the imposition of consecutive sentences may,
under some circumstances, demonstrate that a Booker error was
indeed harmless. In an unpublished decision, we determined that
Booker error was harmless where the sentencing court expressly
refused to run the defendant’s federal Guidelines sentence with
his previously imposed state sentence. United States v. Prones,
145 Fed. Appx. 481, 482 (5th Cir. 2005) (unpublished); see also
United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005)
(identifying imposition of consecutive sentences as one of only
two circumstances in which this court has found Booker error to
be harmless).
However, whether imposition of consecutive sentences is
sufficient to demonstrate that a Booker error is harmless is a
fact-sensitive inquiry that must examine the relationship between
the two sentences imposed. In this case, Woods’ PSR reveals that
the charges pending against him in state court were unrelated to
the federal charges, based on entirely unrelated conduct
occurring during a different time period. This Court has
previously said that “consecutive sentencing is an appropriate
mechanism for imposing distinct punishment for separate criminal
acts, and that a defendant has no right to have concurrent
sentences imposed for two totally unrelated offenses.” United
11
States v. Olivares-Martinez, 767 F.2d 1135, 1137 (5th Cir. 1985)
(citations omitted).
Where the imposition of consecutive sentencing is based or
appears to be based on the unrelated federal and state charges,
we decline to ascribe any motivation to the district court other
than adherence to the default rule that totally unrelated crimes
should ordinarily receive distinct punishment. The mere
imposition of consecutive sentences for unrelated crimes has
little or no probative value tending to demonstrate that the
Booker error in this case was harmless.
C.
The Government also points to the fact that the district
court considered and narrowly rejected an upward departure based
on the recommendation of the PSR.4 The fact that the district
court carefully weighed the recommendation of the PSR to impose
an upward departure, and chose not to do so, is not a factor
which proves beyond a reasonable doubt that the court’s Booker
error was harmless. The court did not impose such an upward
4
This recommended departure was based on U.S.S.G. § 4A1.3,
p.s., which provides that if “reliable information indicates
that the criminal history category does not adequately reflect
the seriousness of the defendant’s past criminal conduct or
the likelihood that the defendant will commit other crimes,
the court may consider imposing a sentence departing from the
otherwise applicable guideline range.”
12
departure, and his decision not to do so does not give us
confidence that the district court would have imposed an
identical sentence under the post-Booker sentencing regime.5
D.
Finally, the Government argues that the district court’s
Booker error is harmless here because there is no basis in the
record for concluding that Woods would have received a lesser
sentence if the district court had proceeded under advisory
guidelines. This argument, however, misconceives the burden of
proof where the defendant preserves the Booker error with an
objection, as Woods did here. It is the Government's burden, not
Woods’, to prove that the sentence imposed would be the same.
This court previously rejected similar arguments from the
Government in United States v. Pineiro, 410 F.3d 282, 285 (5th
Cir.2005) and United States v. Lopez-Urbina, --- F.3d ---, 2005
5
Indeed, this court has noted that even a departure actually
imposed by the district court in some cases may not be enough
to demonstrate that a Booker error was harmless beyond a
reasonable doubt. See United States v. Garza, 429 F.3d 165,
171 (5th Cir. 2005) (“Yet, even a discretionary departure
decision is informed by the Guidelines and ‘thus sheds little
light on what a sentencing judge would have done knowing that
the guidelines were advisory.’”) (quoting United States v.
Schlifer, 403 F.3d 849, 854 (7th Cir. 2005)); see also Burke
v. United States, 425 F.3d 400, 417 (7th Cir. 2005). Because
the district court declined to depart upwardly, we need not
address that question in this case.
13
WL 1940118, *12 (5th Cir. Aug. 15, 2005), cert. denied 126 S. Ct.
672 (2005). In Pineiro, this court stated:
Although this argument would be persuasive under plain-
error review, this argument fails to show that the
preserved error was harmless. It is the government that
must show that the sentencing judge would have imposed
the same sentence under an advisory sentencing scheme.
The judge's silence as to whether or not he would have
imposed a different sentence under an advisory regime
does not satisfy this burden. If we were to accept this
argument to find that the error was harmless, we would
effectively be relieving the government of its burden
and placing it on the defendant.
Pineiro, 410 F.3d at 286. As in Pineiro, the Government in this
instance has the burden to prove that the district court's error
was harmless by showing that the district court would have
imposed the same sentence under the post-Booker advisory regime.
Woods’ inability to point to evidence in the record that the
district court would have imposed a different sentence is
irrelevant under harmless error analysis. Because it is unclear
whether the district court would have imposed the same sentence,
the error cannot be considered harmless.
III.
The arguments made by the government are insufficient to
demonstrate that the Booker error in this case was harmless. The
only factor tending to show that that the district court might
have imposed the same sentence under the post-Booker sentencing
14
regime is the imposition of a sentence at the top of the
Guidelines range. However, for reasons discussed above, such a
sentence is insufficient to demonstrate that the error was
harmless. None of the other factors to which the government
points have probative value, and therefore, even taken
cumulatively, fail to satisfy the government’s burden. We
therefore conclude that the government has failed to meet its
burden of showing beyond a reasonable doubt that the district
court would have imposed the same sentence under the post-Booker
advisory sentencing regime. Thus, Woods is entitled to
resentencing in accordance with Booker.
For the reasons set forth above, we vacate Woods’ sentence
and remand to the district court for resentencing consistent with
Booker.
VACATED and REMANDED.
15