United States v. Charles J. Kerns

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 15, 2006
No. 05-10127
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-80146-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES J. KERNS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 15, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Charles Kerns appeals his sentence for conspiracy to commit securities and
wire fraud, securities fraud, wire fraud, and money laundering. He asserts he is
entitled to resentencing because the district court applied enhancements under the
Sentencing Guidelines based upon facts not found by the jury, charged in the
indictment, or admitted by him, pursuant to United States v. Booker, 125 S. Ct. 738(2005). He also asserts the district court erred under Booker by applying the
Guidelines in a mandatory fashion. We vacate and remand for resentencing.
I. DISCUSSION
Because Kerns raised an objection pursuant to Blakely v. Washington, 124 S.
Ct. 2531 (2004), in the district court, we review his sentence de novo and reverse
only if any error was harmful. See United States v. Paz, 405 F.3d 946, 948 (11th
Cir. 2005). We have explained there are two types of error under Booker: (1)
Sixth Amendment error based upon imposing sentencing enhancements in a
mandatory Guidelines system which were neither admitted by the defendant nor
submitted to a jury and proven beyond a reasonable doubt; and (2) statutory error
based upon sentencing under a mandatory Guidelines system. United States v.
Shelton, 400 F.3d 1325, 1329-30 (11th Cir. 2005).
Sixth Amendment error under Booker is disregarded only if harmless
beyond a reasonable doubt. Paz, 405 F.3d at 948 (11th Cir. 2005). “This standard
is only met where it is clear ‘beyond a reasonable doubt that the error complained
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of did not contribute to the sentence obtained.’” Id. (alteration and citation
omitted). The government bears the burden of showing the sentence did not affect
the defendant’s substantial rights. Id. Where we do not know what the district
court would have done under an advisory Guidelines scheme, the government
cannot meet its burden to show it is clear beyond a reasonable doubt the error
complained of did not contribute to the sentence obtained. United States v. Davis,
407 F.3d 1269, 1271-72 (11th Cir. 2005). Preserved statutory error under Booker
is subject to a “less demanding” standard than the beyond a reasonable doubt
standard applicable to Sixth Amendment errors under Booker. United States v.
Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005).
Here, the Government concedes the district court committed error under
Booker, and the error was not harmless. We agree. Because the district court used
extra-verdict enhancements to increase Kerns’ sentencing range in a mandatory
Guidelines system, the district court committed Sixth Amendment error under
Booker.1 See Shelton, 400 F.3d at 1329-30. Because the district court sentenced
1
In committing Sixth Amendment error in this case, the district court applied: (1) a 2-
level increase for 10 or more victims under § 2B1.1(b)(1)(K); (2) a 2-level increase for
sophisticated means under § 2B1.1(b)(2)(A)(i); (3) a 4-level increase for substantially
endangering the solvency of a publicly traded company, under § 2B1.1(b)(12)(B)(ii)(I); and (4) a
2-level enhancement for obstruction of justice under § 3C1.1.
3
Kerns pursuant to a mandatory Guidelines scheme, statutory error has also been
established. See id. at 1330-31.
Though the district court stated “a sentence at the low end of the [G]uideline
range will be sufficient to deter future criminal conduct and would provide
sufficient punishment in this case,” that statement is insufficient to show the Sixth
Amendment error was harmless because it is not clear beyond a reasonable doubt
that the court would not have found another sentence to be more appropriate under
an advisory scheme. Accordingly, the Government cannot meet its burden to show
it is clear beyond a reasonable doubt the Sixth Amendment error complained of did
not contribute to the sentence obtained. See Davis, 407 F.3d at 1271-72. Because
there was Sixth Amendment error that was not harmless beyond a reasonable
doubt, we need not consider whether the statutory error was harmless.
II. CONCLUSION
We vacate Kerns’ sentence and remand the case for resentencing consistent
with Booker. We note the district court correctly calculated Kerns’ Guidelines
range of 324 to 405 months’ imprisonment. See United States v. Crawford, 407
F.3d 1174, 1178-79 (11th Cir. 2005) (stating after Booker, district courts must
consult the Guidelines and “[t]his consultation requirement, at a minimum, obliges
the district court to calculate correctly the sentencing range prescribed by the
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Guidelines”). Thus, on remand the district court is required to sentence Kerns
according to Booker, considering the Guidelines advisory range of 324 to 405
months’ imprisonment and “other statutory concerns as well, see [18 U.S.C.]
§ 3553(a) (Supp. 2004).” Booker, 125 S. Ct. at 757.2
VACATED AND REMANDED.
2
We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand. Rather, we merely hold the Government did not meet its burden
of showing the Sixth Amendment and statutory error under Booker was harmless. We also do
not attempt to decide now whether a particular sentence might be reasonable in this case.
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