United States v. Boulais

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1750
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN BOULAIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Sven D. Wiberg and Desfosses Law Firm for appellant.
Joseph N. Laplante, Assistant United States Attorney, with
whom Thomas P. Colantuono, United States Attorney, was on brief
for appellee.
January 18, 2006
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. Kevin Boulais
(“Boulais”) appeals his sentence of 100 months, imposed following
a guilty plea to one count of being a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1). In sentencing Boulais, the
district court departed downward from the Armed Career Criminal
Act’s (“ACCA”) mandatory minimum sentence of 180 months. 18 U.S.C.
§ 924(e)(1). Boulais argues that his case should be remanded for
resentencing. We reject Boulais’ arguments and affirm his
sentence.
FACTUAL AND PROCEDURAL HISTORY
Boulais pleaded guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
The plea agreement stated that Boulais faced a maximum penalty of
ten years’ imprisonment, but indicated in a footnote that he could
face a fifteen-year minimum penalty with the potential for life
imprisonment if he was found to be an armed career criminal under
the ACCA, 18 U.S.C. § 924(e). After the plea agreement had been
signed, but before the plea colloquy, the government offered
evidence indicating that Boulais qualified for sentencing as an
armed career criminal. At the waiver of indictment and change of
plea hearing, Boulais was advised by the district court that he
could be sentenced as an armed career criminal.
At the sentencing hearing, Boulais raised a general
constitutional objection to the United States Sentencing Guidelines
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and a Sixth Amendment Confrontation Clause objection to the court’s
application of the ACCA. Boulais did not admit or stipulate to the
fact that he had prior convictions. However, when questioned
directly by the district court regarding his objection to the
ACCA’s application, Boulais stated that he had no factual basis for
challenging the prior convictions listed in the presentence report.
The district court initially calculated Boulais’
sentencing range under the Guidelines to be 168-210 months. Over
Boulais’ objection, the court found the ACCA’s fifteen-year minimum
sentence to apply, but departed downward on the government’s
substantial assistance motion to arrive at the 100 months’
sentence.
Following the Supreme Court’s decision in United States
v. Booker, 125 S. Ct. 738 (2005), we invited supplemental briefing
to address whether Boulais preserved a Booker claim and whether his
case should be remanded for resentencing.
DISCUSSION
We review a preserved claim of Booker error under the
harmless error standard. United States v. Vazquez-Rivera, 407 F.3d
476, 488 (1st Cir. 2005); see Booker, 125 S. Ct. at 769. Here,
Boulais preserved his Booker claim by challenging the Guidelines’
constitutionality in the district court. We review alleged
violations of the Sixth Amendment’s Confrontation Clause de novo.
United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005).
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Boulais’ arguments for a remand for resentencing come
down to three propositions. We find none to be meritorious.
First, Boulais claims Booker error because the district
court conducted a Guidelines analysis of his potential sentence.
Such an error exists when a “defendant’s Guidelines sentence was
imposed under a mandatory system.” United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). However, Boulais’
sentence was imposed under the ACCA, not the Guidelines, and hence
Booker does not apply. See United States v. Ivery, 427 F.3d 69, 71
(1st Cir. 2005) (holding sentencing under the ACCA not to be a
Booker error); United States v. Sanchez-Berrios, 424 F.3d 65, 80
n.8 (1st Cir. 2005).
Second, Boulais objects on constitutional grounds to any
use of prior convictions not charged in the information or proved
to a jury. However, as we have made clear, following Booker, “it
remains the law that previous criminal convictions are not ‘facts’
that must be found by a jury and proved beyond a reasonable doubt.”
United States v. Work, 409 F.3d 484, 491 n.1 (1st Cir. 2005)
(citation omitted); see also Ivery, 427 F.3d at 74 (holding that
“nothing in Blakely or Booker alters the continuing validity of the
Almendarez-Torres exception to Apprendi”). Here, the presentence
report and the district court’s colloquy with Boulais provided a
constitutionally sufficient basis for sentencing Boulais under the
ACCA. Boulais admitted at sentencing that he did not “have a basis
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to challenge [any of the predicate convictions in the presentence
report] on a factual basis as a matter of proof on the burden.”
Nor is there merit in Boulais’ arguments based on Blakely v.
Washington, 542 U.S. 296 (2004), since his sentence was well below
the statutory maximum of life imprisonment. See United States v.
Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003).
Third, Boulais objects to the use of the criminal history
calculation in the Presentence Report on hearsay grounds. The
Sixth Amendment right to confront witnesses, however, does not
apply to sentencing. United States v. Luciano, 414 F.3d 174, 178-
79 (1st Cir. 2005). The district court’s use of the presentence
report raises no Confrontation Clause issue.
Affirmed.
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