United States v. Lewis

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0888n.06
Filed: November 8, 2005
No. 04-5797
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
GARION LEWIS, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: KEITH, BATCHELDER, Circuit Judges, and OBERDORFER1, District Judge.
DAMON J. KEITH, Circuit Judge. Defendant-Appellant Garion Lewis (“Lewis”) was
convicted on a guilty plea for violating 18 U.S.C. §§ 2119 (carjacking) and 924(a)(1)(A)(ii) and (b)
(use and discharge of a firearm in furtherance of a crime of violence). He appeals his sentence,
contending that the district court erred when it sentenced him under the mandatory pre-Booker
sentencing Guidelines. For the reasons set forth below, we VACATE the sentencing order and
REMAND for resentencing consistent with the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005).
I. BACKGROUND
A. Statement of the Case
1
The Honorable Louis F. Oberdorfer, United States District Court for the District of
Columbia, sitting by designation.
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On November 25, 2003, a federal grand jury returned a two-count indictment charging Lewis
with violating 18 U.S.C. §§ 2119 (carjacking) and 924(c)(1)(A)(iii) (using and discharging a firearm
during and in relation to the carjacking). On January 22, 2004, a plea agreement was entered
wherein Lewis pled guilty to both counts of the indictment. In the plea agreement, Lewis agreed
that he would be sentenced according to the United States Sentencing Guidelines (“U.S.S.G.”or
“Guidelines”) and that the term of his imprisonment for violating § 924(c) was a mandatory
minimum of 10 consecutive years.
The Presentence Report (“PSR”) was submitted on May 28, 2004. The PSR, using the facts
from Lewis’ guilty plea, determined his sentence under U.S.S.G. §§ 2B3.1 (carjacking) and 2K2.4
(using a firearm). Section 2B3.1 resulted in a base level offense of 20. Lewis received
enhancements under § 2B3.1(b)(4)(A) (four levels) for discharging a firearm during the offense; §
2B3.1(b)(5) (two levels) for carjacking in furtherance of the offense; and § 2B3.1(b)(7)(B) (one
level) for stealing the victim’s car that cost more than $10,000 but less than $50,000. This raised
Lewis’ adjusted offense level to 27.
Lewis received a reduction of three levels for acceptance of responsibility, which resulted
in a total offense level of 24. Pursuant to U.S.S.G. § 2K2.4, Lewis’ Guideline for violating § 924(c)
was a statutory minimum of 10 years. The resulting Guideline range for count one was 51 to 63
months. With the addition of 120 months for count two, Lewis’ total effective Guideline range was
171 to 183 months.
On June 4, 2004, judgment was entered finding Lewis guilty of violating 18 U.S.C. §§ 2119
and 924(c)(1)(A)(iii). At the sentencing hearing, the district court granted the government’s motion
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to depart downward based upon Lewis’ substantial assistance. The court concluded that the
sentencing range for Lewis absent a downward departure was the equivalent of an offense level of
34, Criminal History Category I. The court departed downward from that range to an offense level
of 32 and a sentencing range of 121 to 151 months. Taking into consideration the eight months
Lewis had already served but that the Bureau of Prisons would not credit, the district court sentenced
Lewis to a term of 130 months. After the entry of judgment, Lewis filed a timely notice of appeal.
B. Facts
The PSR sets forth the following conduct as underlying the offense. On September 10, 2003,
Jason Brannon (“Brannon”), a distribution manager for the Chattanooga Times/Free Press
newspaper, was working at a newspaper rack. He was approached by three men, including Lewis
who was holding a gun. The three men threatened to shoot Brannon and forced him to give them
the newspaper rack money as well as his wallet. Brannon told the men that they could get more
money from newspaper racks in other locations. The men pointed the gun at Brannon’s face and
forced him to get into the rear cargo area of his car.
Brannon instructed the men to drive to Parkridge Hospital where he could remove more
money from the newspaper racks. When they arrived at the hospital, one of the men, with the gun
in his waistband, accompanied Brannon into the hospital. Brannon was forced to remove the money
from the racks.
The men discovered Brannon’s ATM card and instructed him to withdraw $2,500 from his
account. Brannon attempted withdraw $2,500, but was only permitted to withdraw $300. The men
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then drove to another ATM and Brannon withdrew another $300. After each ATM withdrawal,
Brannon was forced back into the rear cargo area of the vehicle.
At the third ATM, as Brannon was withdrawing money, a customer drove up and distracted
the men. Brannon ran into the nearby Krispy Kreme Doughnut shop. As Brannon ran into the shop,
Lewis fired two gun shots in Brannon’s direction. One of the bullets hit the Krispy Kreme building.
The men drove away in Brannon’s vehicle. Several days later, Lewis and the other men were
arrested in Atlanta, Georgia.
II. ANALYSIS
Lewis was convicted on a guilty plea for violating 18 U.S.C. §§ 2119 (carjacking) and
924(c)(1)(A)(ii), (2)(a) and (b) (use and discharge of a firearm in furtherance of a crime of violence).
Lewis argues on appeal that his sentence should be vacated under Booker, 125 S. Ct. 738, because
the district court sentenced him under the mandatory pre-Booker guidelines.
The Booker decision made two major changes to the Guidelines. First, Booker requires this
court to determine whether the district court violated the Sixth Amendment when it imposed an
enhanced sentence based on the sentencing judge’s determination of a fact (other than a prior
conviction) that was not found by the jury or admitted by the defendant. Id. at 756. In this case,
there was no Sixth Amendment violation. Lewis admitted in the plea agreement that he discharged
a firearm in furtherance of a crime of violence, with knowledge that this offense included a
mandatory minimum sentence of ten consecutive years. The district court did not violate the Sixth
Amendment when it enhanced Lewis’ sentence beyond the base level offense Guideline range,
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relying on the facts Lewis admitted in his plea agreement. Id. at 749 (citing Blakely v. Washington,
542 U.S. 296 (2004)).
Second, Booker excised and severed two provisions of the Sentencing Reform Act, 18 U.S.C.
§§ 3553(b)(1) and 3742(e) in order to remedy any potential Sixth Amendment violations created by
mandatory sentencing enhancements under the Guidelines.2 Id. at 764. The Guidelines are now
advisory without these provisions. Id. at 757. Thus, while a district court must still give some
consideration to the appropriate Guideline range when making a sentencing determination, the
district courts are no longer bound by the applicable Guidelines. Thus, it is erroneous for a district
court to sentence a defendant based on the belief that the Guidelines are mandatory, even if no Sixth
Amendment violation results. Id. at 769.
This appeal presents a non-constitutional Booker error issue. Lewis failed to raise a Booker
challenge to his sentence in district court. Where a challenge to the district court’s sentencing has
not been raised below, this court reviews the district court’s decision for plain error. United States
v. Oliver, 397 F.3d 369, 375 (6th Cir. 2005); see also, United States v. Barnett, 398 F.3d 516, 525
(citing Booker, 125 S. Ct. at 769) (noting that whether a new sentencing hearing is required depends
on “ordinary prudential doctrines” such as “whether the issue was raised below and whether it fails
the plain error test.”); Fed.R.Crim.P. 52(b).
Under the plain error test, before an appellate court can correct an error not raised at trial,
there must be (1) an error; (2) that was plain (i.e., clear and obvious); (3) that affected substantial
2
Section 3553(b)(1) required sentencing courts to impose a sentence within the applicable
Guideline range (in the absence of circumstance that justify a departure) and § 3742 sets forth the
standard of review on appeal for sentencing determinations. Booker, 128 S. Ct. at 764.
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rights. United States v. Hamm, 400 F.3d 336, 339 (6th Cir. 2005) (quotations omitted). If all three
conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but
only if “the error seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” Id.
The first two prongs under the plain error test are satisfied. There was an error and the error
was plain. The district court erroneously sentenced Lewis under the mandatory pre-Booker
Guidelines. The district court was required to use the mandatory Guidelines. The district court’s
error was “clear” and “obvious” in that it treated the Guidelines as mandatory. See Oliver, 397 F.3d
at 379 (stating that “where the law at the time of trial was settled and clearly contrary to the law at
the time of appeal [] it is enough that an error be ‘plain’ at the time of appellate consideration.”
(quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).
In this case, the main issue is whether the error affected Lewis’ substantial rights. This
means that the error must have been prejudicial. A prejudicial error must affect the outcome of the
proceedings. United States v. Milan, 398 F.3d 445 (6th Cir. 2005) (citing United States v. Olano,
507 U.S. 725, 734 (1993)).
In Barnett, this court held that when a district court sentences a defendant assuming that the
Guidelines are mandatory, there is a presumption that defendant’s substantial rights were affected.
398 F.3d at 529, reh’g en banc denied, 400 F.3d 481 (6th Cir. 2005), cert. denied, – S.Ct. –, 2005
WL 1420271 (Sept. 20, 2005). The court applied this standard to the non-constitutional Booker
error finding that the inherent nature of the error makes it exceptionally difficult for the defendant
to demonstrate that the outcome of the lower court would have been different had the error not
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occurred. Id. at 526-27; see also Hamm, 400 F.3d at 340 (stating that even if the district court might
have opted not to depart from the recommendations of the Sentencing Guidelines, the fact that it did
not have the opportunity to do so affected the defendant’s substantial rights). But see United States
v. Shelton, 400 F.3d 1325 (11th Cir. 2005) (rejecting the Barnett presumed prejudice standard);
United States v. Gonzales-Huerta, 403 F.3d 727 (10th Cir. 2005) (same).
Further, this court in United States v. Oliver, the first Sixth Circuit case interpreting Booker,
found that “even if we conclude that the evidence is ‘overwhelming and essentially uncontroverted’
we cannot know the length of imprisonment that the district court judge would have imposed
pursuant to this evidence following Booker. . . . We would be usurping the discretionary power
granted to the district court by Booker if we were to assume that the district court would have given
Oliver the same sentence post-Booker.” 397 F.3d at 381 n.3.
The Second Circuit case, United States v. Lake, is also instructive on this point. 419 F.3d
111, 113 (2nd Cir. 2005). In Lake, the court stated that “[a]lthough some sentences imposed under
the pre-Booker regime would not have been different had the sentences been imposed under the
post-Booker regime, it will usually not be easy to divine with certainty that the sentencing judge
would have imposed the same sentence. Id. at 113.
“The presumption of prejudice can only be rebutted in rare cases where the trial record
contains clear and specific evidence that the district court would not have, in any event, sentenced
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the defendant to a lower sentence under an advisory Guidelines regime.” Webb, 403 F.3d at 382
(emphasis added).3
The government argues that the record contains clear and specific evidence that the district
court would not change his sentence on remand. The government relies on a recent case from this
court, United States v. Webb, 403 F.3d 373. In Webb, this court found that the district court plainly
erred when it sentenced the defendant under the pre-Booker mandatory Guidelines. The court,
nevertheless, found that the record rebutted the presumption of prejudice and demonstrated that the
district court would not have sentenced the defendant to a lower sentence under an advisory
Guideline regime. The court reasoned that this presumption was rebutted where the district court
(1) sentenced the defendant to the maximum sentence possible within the guidelines’ range; (2)
referred to the defendant as a “menace,” and (3) actually considered an upward departure from the
appropriate guidelines range. Id. at 382. The court concluded that “this [was] an exceptional case
where the record contained clear and specific evidence that the district court would not have
sentenced Webb to a lower sentence under an advisory Guidelines regime. Id. (emphasis added).
This case, unlike Webb, is not a rare or exceptional case where there is clear and specific
evidence that the district court would not change its sentence under an advisory Guidelines regime.
The government relies on the district court’s statements reprimanding Lewis for his conduct and
3
In United States v. Milan, 398 F.3d 445 (6th Cir. 2005), this court noted that in comparison
with other circuits, this circuit has adopted a moderate approach to remanding Sixth amendment
cases involving constitutional and non-constitutional Booker errors. See, e.g., United States v.
Rodriguez, 398 F.3d 1291 (11th Cir. 2005) (finding that most Sixth amendment errors will not result
in remands because the appealing defendant will not be able to demonstrate a reasonable probability
that he was prejudiced). But see, United States v. Crosby, 397 F.3d 103 (2nd Cir. 2005) (finding
that automatic remand is warranted in all Booker cases).
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questioning why he committed the crime. Specifically, the government highlights the district
judge’s statements that:
I’m at a loss to understand why someone would take the risk that you took to point
a gun in the middle of a city, aim the gun at a business facility where you knew there
were people, and fire the gun. I could understand your [sic] trying to shoot Mr.
Brannon. That’s not good, and it’s not acceptable; that is understandable. What is
not understandable is firing a weapon into a business where there is such a
substantial risk of harm to people.
...
If the Court had major concerns that when you got out of jail you would again be
exercising such poor judgment where you were subjecting innocent citizens to a risk
of harm, the Court would try to incarcerate you for as long as the Court could. But
since you do have a clean record and the government has filed a motion on your
behalf which the Court has granted, the Court is going to give you the benefit of the
doubt and give you a sentence which is going to result in your being back out on the
streets in about ten years. You’ll be about 28-29, 29 years old [sic], if you get good
time. Compared to what other people get, that is not a long time.
...
Giving you the credit for the cooperation that you have rendered to the government,
the Court is of the view that a sentence of 138 months would be appropriate.
The district court’s statements do not show that this is the rare or exceptional case that presents clear
and specific evidence that it would not have ruled differently under an advisory sentencing regime.
In addition, even though the district court commented on the severity of Lewis’ crime, it
chose to depart downward. Cf. Webb, 403 F.3d 373 (finding an upward departure, in addition to
other factors, as clear and specific evidence that the district court would not reduce its sentence
under an advisory Guidelines scheme). The district court also indicated that if it had major concerns
that Lewis would commit another crime when he is released from jail, it would incarcerate him for
as long as it could. This is evidence that the district court did not feel that Lewis should receive the
maximum sentence. Furthermore, Lewis was not sentenced at the top of the Guideline range.
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Unlike Webb, the court did not sentence Lewis at the top of the Guideline range when his range was
121 to 151 months and he was sentenced to 138 months.
Because the district court might have opted to depart from the recommendations of the
Sentencing Guidelines, the fact that it did not have the opportunity to do so affected the defendant’s
substantial rights. Hamm, 400 F.3d at 340. The district court committed a reversible error that
affected Lewis’ substantial rights when it sentenced him pursuant to the mandatory pre-Booker
sentencing guidelines.
Finally, it is within this court’s discretion to decide whether the error “seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” Hamm, 400 F.3d at 340. This
court believes that “[w]e would be usurping the discretionary power granted to the district courts
by Booker if we were to assume that the district court would have given [the defendant] the same
sentence post-Booker.” Id. (citing United States v. Oliver, 397 F.3d 369 (6th Cir. 2005)).
III. CONCLUSION
For the reasons stated above, we VACATE Lewis’ sentence and REMAND the case to the
district court for re-sentencing consistent with this opinion.