*1 assault, enough atypical. tional to be See Rogers has convictions for steal- DeShon, 5K2.0(d)(2), § arrest, United States v. ing, resisting attempting to manu- (8th Cir.1999). 888, 183 F.3d The methamphetamine, trespass- facture and explain any district court must extraordi- ing. While the district court was not nary atypical depar- or justifying factors suggested range bound to the of 51 to 63 5K2.0(e), § citing ture. 18 U.S.C. imprisonment, probation months is unrea- 3553(c)(2). § sonable. The facts in this case do not show ex probation sentence of does not traordinary or atypical justi rehabilitation properly Congress’s consider desire to fying Rogers’s a downward departure. re sentencing avoid unwarranted disparities. uniting family remaining drug- and 3553(a)(6). § See 18 U.S.C. It is unreason- free, commendable, while are not extraor expect able to that defendants with similar dinary atypical. or See United States v. records, conduct, guilty of similar would (8th Patterson 315 F.3d Cir. probation. receive 2003). extraordinary In the absence of By 3553(a), the factors in section rehabilitation, atypical post-offense the de district court’s sentence was unreasonable. parture However, impermissible. be judgment is RE- VACATED and mandatory, cause the Guidelines are not MANDED for re-sentencing. is reviewed for unreasonable ness.
' The sentence is unreasonable when mea
sured against the factors reasonableness 3553(a).
set forth in section The possess
ing-rifle-after-hunting Rogers’s second
parole Earlier, eight violation in
Rogers trespassing was found in a restrict Dam,
ed area at Truman while two me n — America, UNITED STATES of also on probation manufacturing a con Appellee, Plaintiff — nearby trolled substance —fished with his son in no-fishing area. Trespassing with HAIDLEY, Christina M. Defendant— felons does not respect demonstrate Appellant. 3553(a)(2)(A). § the law. See 18 U.S.C.
Rogers’s parole second violation illus- No. 04-3312. trates that parole/probation is not ade- United States of Appeals, Court quate deterrence. See 18 U.S.C. Eighth Circuit. 3553(a)(2)(B). § He understood the terms parole, yet possessed ri- knowingly Submitted: Feb. Moreover, show, fle. as the pro- violations Filed: March protect bation would not public from criminal conduct. See 18 U.S.C. 3553(a)(2)(C).
§ probation
The sentence of does not ade-
quately address the and character-
istics of the. defendant. See 18 U.S.C. 3553(a)(1). (admitted) Aside from use
marijuana, cocaine, methamphetamine, *2 Gilg, L. Federal
Jennifer Asst. Public Defender, Omaha, NE, appellant. Franklin, Atty., Frederick D. Asst. U.S. Omaha, NE, appellee. MELLOY, HEANEY,
Before and FAGG, Judges. Circuit MELLOY, Judge. Circuit era,1 pre-Blakely In a this would have sentencing guideline a routine federal been Haidley government charged case. The information with bank embez- one-count al- specifically zlement. The information $135,000. loss amount was leged that the Haidley pled guilty and waived indictment proceed- At plea to the information. ing, specifically stipulated she $135,000loss. prepared presen- office probation report determined Ms. report.
tence
offense lev
Haidley’s guideline sentencing
thirteen,
el to be a level
criminal
level
category I. The offense
deter
six
using
mined
a base offense level of
2B1.1(a)(2),
§
a ten level
under U.S.S.G.
amount more than
increase for
loss
$120,000,
$200,000
than
under
but
less
2B1.1(b)(1)(F),
§
and a three-lev
U.S.S.G.
responsibili
acceptance
reduction for
el
(b).
3E.1.1(a)
ty
U.S.S.G.
under
adjustments to the
There were no other
An
level
guideline computation.
offense
-
-,
S.Ct.
federal citing Blakely. In her motion to declare face, then, may The issue we be framed guidelines the Haidley unconstitutional ar as Is it harmless error to sen- follows. gued: tence a mandatory defendant under a fed- In in sentencing the defendant this man- sentencing guideline regime, op- eral as ner, court the must still adhere to the posed advisory system, to the Booker when statutory parameters by set out Con- there is no Sixth Amendment issue toas gress. may It also consider the sentenc- guideline computation the and the defen- ing guidelines as ‘recommendations’ dant is sentenced at the bottom' of the which longer are instructive but no bind- sentencing guideline range? federal We However, ing on the court. the court is that conclude it is not harmless error and any also free to consider other informa- present that the case must be remanded tion determining deems relevant to it resentencing discretionary under the appropriate the sentence. system set out in Booker. rejected Haidley’s The district court chal- lenge system and found that the of manda- In determining 'whether an error tory guidelines remained constitutional. harmless, is Federal Rule of Criminal Pro Consequently, Haidley pre- we find that 52(a) provides cedure any that error which served purposes analysis error for of our does not affect rights substantial shall be of this case recently under the decided disregarded. The burden of proving that — Booker, case of United States v. an error does not rights affect substantial -, 160 S.Ct. L.Ed.2d 621 upon error,” “beneficiary is the of the (2005). here, government. the Chapman See purposes California, 18, 24, 824, 17
We assume for
of this
386 U.S.
87 S.Ct.
opinion that the determination of the'sen
L.Ed.2d 705
proof
standard of
tencing guideline range in this case
upon
does
the
imposed
government
depen
is
not raise a Sixth Amendment issue as out
upon
dant
the error
of
is
constitu
Booker,
lined in
stipulated
since
to tional or nonconstitutional magnitude.
See,
McAninch,
amount.
loss
We also know from
e.g., O’Neal v.
513 U.S.
Booker that
interpretation
437-38, 115
992, 130
the remedial
of
S.Ct.
L.Ed.2d 947
(1995)
the Sentencing Act as set forth in
(discussing
Justice
the two harmless error
day
prisoner's
of twelve months and
up
one
wards service of the
sentence of
actually
fifty-four days
per year
good
more lenient sentence than a
to
behavior
twelve month sentence
of the
Consequently,
person
because
federal
while incarcerated.
dealing
good
statute
with
time credit.
sentenced to
twelve month sentence will
3624(b)(1)
months,
provides
prisoner
U.S.C.
person
that a
serve twelve
while a
sen-
serving
imprisonment
who is
a term
day
tenced to a twelve month and one
sen-
year may
more than one
approximately
receive credit to-
tence will serve
10h
and the
on direct re-
stances of the offense
apply
to
cases
standards
defendant”).
view).
constitutional
characteristics of the
On the
If
is of
the error
us,
is re- basis
the record before
we cannot
government
magnitude,
then
say
any
harmless
confidence that the district
the error was
quired
prove
Chapman,
court would not have sentenced the defen-
beyond a reasonable doubt.
sentence,
imposed
As to errors
dant to a lesser
dif-
at
90 recently Our court decided the case of Parsons, case, v. 396 F.3d we need not deter- United States present In the Cir.2005). (8th In that court opinion, of constitutional the mine if the error was expressly if the less held that the defendant had magnitude. apply Even we just standard, agreed guideline computation, not to the Kotteakos we do stringent, There, as had in this case. the Applying harmless. present find the error applied district court a sentence within the setting, in we must decide Kotteakos this agreed-upon range thirty thirty-seven to to grave we have doubt as wheth- carefully have considered sentencing of the was sub- We er the outcome error, is, controlling on this by the that whether Parsons stantially influenced not, though as case. We have concluded it is sentencing guidelines use of the First, two reasons. it is clear that the mandatory. in not the defendant Parsons had raised such determining In whether we have constitutionality issue of of the federal doubt, grave principally we are influenced sentencing guidelines at the trial level. judge made by the fact that district Consequently, Parsons did not involve to the defen conscious decision analysis. Secondly, Par harmless error guideline range. at of the dant the bottom case. clearly plain.error was Un sons in which the district This is not case error, government like harmless where the in judge gone any imposi have lower could the result would proving has the burden un departing tion of the sentence without different, plain not been in a error have Although § 5K2.0. it is not der U.S.S.G. to the burden is on the defendant case that at sentenc dispositive, we also note Fed. prejudicial. that the error was prove presen in the draft ing, response Olano, 52(b); States v. R.Crim.P. United num Haidley pointed out a report, tence 725, 734, 1770, 123 113 S.Ct. a bottom of ber of factors that warranted reasons, For these we L.Ed.2d 508 sentencing, the fact guideline such as present decision do not believe that money that some of the embezzled holding in Parsons. contravenes the high expenses. medical used for her child’s judgment the district court im- Haidley’s Defense counsel also referenced situation, day sen- young posing a twelve month and one family which included two and the case is remanded are which tence is reversed children at home. Both factors opinion no express We can considered under 18 U.S.C. resentencing. be 3553(a)(1) (“the be the defendant should and circum- as to whether nature to the same different sen- resentenced
tence.
HEANEY, concurring. Judge, Circuit
I concur the result. America,
UNITED STATES of
Plaintiff-Appellee, AMELINE,
Alfred Arnold
Defendant-Appellant.
No. 02-30326. Appeals, States Court of
United
Ninth Circuit. * 4, 2003.
Submitted Nov. 21, Filed
Opinion July 2004.
Rehearing Opinion Granted and 9,
Withdrawn Feb. 2005.
Opinion Rehearing on Feb. Filed 2005.
Filed Feb.
As Feb. Amended. * unanimously this argument. Panel finds case suitable for decision without oral