*1 America, STATES of UNITED
Plaintiff-Appellee, ANDERSON, Defendant- Donna
Appellant. 07-5037. No. Appeals, United States Court Sixth Circuit. Argued: March 2008. May and Filed: Decided *2 Hoss, Bryan H. &
ARGUED: Davis Hoss, Tennessee, Chattanooga, Appel- for Winne, lant. A. Scott Assistant United Tennessee, Attorney, Chattanooga, States Appellee. Bryan for BRIEF: H. ON Hoss, Hoss, Chattanooga, & Tennes- Davis see, Sullivan, Appellant. for L. As- Gregg Attorney, sistant Chattanoo- Tennessee, ga, Appellee. for KENNEDY, BATCHELDER, Before: GRIFFIN, Judges. Circuit KENNEDY, J., opinion delivered court, GRIFFIN, J., joined. in which 331), BATCHELDER, (p. J. delivered a concurring separate opinion.
OPINION
KENNEDY, Judge. Circuit Donna appeals her sen- guilty imposed pursuant plea
tence to her 3B1.2(a), and that of 18 duction violation (2006). 1956(a)(l)(B)(i) harmless, al- She these errors were not we VA- U.S.C. procedurally that her sentence court’s sentence and leges CATE the district court in- unreasonable because resentencing consistent REMAND *3 her recommended correctly calculated opinion. with this in at least Sentencing Guidelines First, contends that ways. she
three BACKGROUND improperly used district court 2Sl.l(a)(2), § to of § instead 7, 2006, Ms. Donna On December level. Section her base offense determine to a term of for- Anderson was sentenced 2Sl.l(a)(l) the base offense calculates money laun- ty-eight prison months applicable the Guidelines section based on dering violation of 18 U.S.C. criminal conduct from underlying 1956(a)(l)(B)(i), plead- § to which she had funds were derived. the laundered which Anderson had been indict- guilty. ed Ms. (a)(1) used, howev- can be Subsection five hun- conspiracy ed for to distribute conditions, which Ms. er, two when methamphetamine grams dred or more of met, absent, are asserts are Anderson 841(a)(1), § of 21 U.S.C. violation can be held namely the offender when (b)(1)(A), a statement in vio- making false underlying offense and 1001, laundering lation of 18 U.S.C. offense’s Guidelines money promote intent to the sale with can calculated. Even recommendation be from was illegal drugs, (a)(1) was the correct subsec- if subsection obtained, in violation of 18 U.S.C. however, Ms. Anderson as- apply, tion 1956(a)(1)(A)®, improperly serts represented proceeds knew that she safety valve reduction a two-level withheld illegal activity in violation of 18 U.S.C. 2Dl.l(b)(7). Lastly, Ms. under 1956(a)(1)(B)®. bar- plea Pursuant to if of subsection avers that use Anderson charge, to the last gain, pleaded guilty (a)(1) en- then the two-level proper, was indictment, and twenty-three in the count 2Sl.l(b)(2)(B) im- hancement under to dismiss the re- government agreed concedes proper. government The charges. maining have considered the district should involvement Anderson’s criminal reduction, safety but other- two-level valve her the criminal conduct of stems from arguments. Ms. Anderson’s opposes wise Anderson, methamphet- son, Dennis contends Additionally, government had been Dennis Anderson amine dealer. granted improperly that the district drug oper- methamphetamine conducting a for a a four-level reduction in the states involved individuals ation that 3B1.2(a). pursuant role at least from Georgia and Tennessee suggests that not- also government 1, 2005. January through September errors, Ms. Anderson withstanding these time, dealing in at least he was During the to- resentenced because should not be per pounds five harmless to the tality the errors was thirty-five weeks For the week. that, find while Because we defendant. then, pur- Anderson Dennis 2Sl.l(a)(l) conspiracy, proper, Ms. use of roughly one-hundred- sold chased have been considered and/or Anderson should seventy-nine or over seventy-five pounds, safety valve reduction a two-level methamphet- kilograms, of 2Dl.l(b)(7) quarter and a and should not have been amine. participant minor re- a four-level granted that her son occasionally
Ms. Anderson was aware Ms. Anderson would deliver dealer, $20,000 helped and she him up was a to Dennis Anderson so that illegal proceeds. Lastly, his Dennis purchase drugs. conceal he could Mr. $25,000 in gave Moerland asserted that Ms. Anderson cash, coins, three boxed sets of and two occasionally to store given guns would digital cameras to conceal. Ms. Anderson police Dennis Anderson. When Weathers, sister, then had Ms. Alison unit storage searched a rented place these items Ms. Weathers’s safe Anderson, they ri- discovered three stolen deposit purpose box. The of this was to fles. illegal activity, namely conceal that meth- Anderson, In sentencing Ms. distribution,
amphetamine was the source *4 determined of the items. 2Sl.l(a)(l), (a)(2), provided and not the Anderson also in assisted her son appropriate by test which to calculate Ms. concealing purchased the fact that he had Anderson’s base level. This conclusion $8,500 Navigator a Lincoln in cash. primarily was based on the district court’s applied Ms. Anderson had for the title to determination that Ms. Anderson “must be the registered vehicle and had the vehicle held for what [she] did t[o] in her name. drug-trafficking further[] activities.” 2S1.1(a)(1) J.A. at 154-55. Section was in Anderson also assisted her son stated, appropriate, it it Hixson, because deter- drug his trade. Mr. James mines the base level for the laun- Chattanooga Depart- officer Police force, dering offense reference to the assigned ment to the DEA task tes- offense conduct, level for underlying sentencing hearing tified at the first therefore takes account of the defendant’s co-conspirators two of Dennis Anderson’s responsibility for confirmed Ms. criminal participation Wilson, activity. conspiracy. Mr. Luke one co- conspirator, had stated that Dennis court, district pursuant house, Anderson had used Ms. Anderson’s 2Sl.l(a)(l), referenced 2D1.1 to obtain which primary was Dennis Anderson’s res- Ms. Anderson’s base offense level. Sec- idence, present while Ms. Anderson was to tion 2D1.1 determines offense levels based conduct his business. on the amount of narcotics for which the Mr. Wilson also stated that when Dennis responsible. defendant is To determine shipments Anderson would receive narcotics, that quantity of house, drugs to Ms. Anderson’s he would court asked Officer Hixson to estimate occasionally direct Ms. Anderson to re- “the minimal amount drugs which the trieve so that pay he could reasonably defendant could have foreseen narcotics, plain which were in view. Denn[is] involved with
Officer Hixson further testified that Mr. over time period that [Officer Hixson] Moerland, Clay co-conspirator, another believed [Ms. Anderson] was involved.” had also confirmed Ms. Anderson’s assis- J.A. 116. Officer Hixson testified that tance to Dennis Anderson. On one occa- the “minimum figure would an estimat- sion, Mr. Moerland and pounds.” Dennis Anderson ed 3 J.A. at 116. The district $50-$60,000 had roughly drug counted preponderance court found money and Dennis Anderson called Ms. figure evidence that this was a conserva- cash, pick Anderson to come up which tive estimate of the amount of metham- she did. Mr. phetamine Moerland also stated that Ms. Anderson could have ANALYSIS partic- upon reasonably foreseen conspiracy. Based ipation challenges procedural found, figure, ar- reasonableness of her sentence. She 2D1.1, §in Quantity Table Drug from the incorrectly cal- gues that the district thirty-two, level offense that the base recommendation culated the Guidelines’ the defendant applicable (a)(2), rather than because kilograms grams to 1.5 responsible for to determine the should have been used methamphetamine. alternative, In the base offense level. 2Sl.l(a)(2) if the use of asserts that a few ad- court determined The district (1) then the district court should proper, to Ms. Anderson’s justments apply should safety re- applied a two-level valve have matter, general level. As a offense (2) 2Dl.l(b)(7); and pursuant duction characteris- specific that the found en- applied not have a two-level should used, rather should be tics from 2S1.1 2Sl.l(b)(2)(B). hancement offense characteristics any specific than errors, Ms. Anderson alleged Due to these court, there- 2D1.1. The district from requests remand her case to the dis- we fore, that Ms. Anderson’s offense found resentencing. trict court for two, *5 by bringing should be increased government generally opposes The thirty-four, pursuant the offense level to resentencing. The request Anderson’s for 2Sl.l(b)(2)(B). court then The district the district government contends four, pursuant the offense level reduced and properly applied court 3B1.2(a), that Ms. because found Anderson’s sen- correctly increased Ms. in the a minimal role played 2Sl.l(b)(2)(B). §to While pursuant tence further re- The district court offense. that Ms. Anderson government agrees three, pursuant duced the offense level safety for a have been considered should 3E1.1, acceptance for Ms. reduction, that Ms. it also avers valve adjusted The offense lev- responsibility. a four-level incorrectly received el, twenty-five. gov- role. The for a reduction any error suggests further ernment then determined The district court was harm- by the district court committed govern- departure a was warranted. less. §a 5K1.1 motion based ment had made Anderson’s substantial assistance upon proce A will be found sentence The district government. to the the district durally unreasonable when motion for a government’s the sen granted accurately calculate failed to re- departure, and therefore the United downward tencing recommendation level from Anderson’s offense See United Sentencing duced Ms. Guidelines. States Hazelwood, 792, twenty-two. The 800-01 twenty-five to v. 398 History Cir.2005); v. United with a Criminal accord Gall level combined — 596, -, States, in a Guidelines 128 S.Ct. of I resulted U.S. Category (2007). conduct de 445 We of a sentence between 169 L.Ed.2d recommendation legal con- a district court’s The district novo review of forty-one fifty-one months. United the Guidelines. that, regarding clusions the Guide- court found Kaminski, 665 sentencing States v. and the lines recommendation Cir.2007). find- court’s factual 3553(a), The district a sufficient factors 18 U.S.C. error. Id. for clear ings are reviewed forty-eight for sentence Ms. will be warranted Generally a remand in prison. months 324 (a)(1) application court committed an error tion for
when
district
subsection
in computing the Guidelines’ recommended
points
not met. Ms. Anderson
to a num-
Hazelwood,
sentencing range.
398 F.3d at
support
ber of facts to
the proposition that
required,
801. A remand will not be
solely third-party money
she is
launder-
harmless, however,
an error deemed
only
er. She
gave
asserts
she
any
“we are certain that
...
such error
drug money
put
son’s
to her sister to
‘did not affect the district court’s selection
box,
safety deposit
and that
this is not
” Hazelwood,
imposed.’
sentence
drug conspiracy.
direct involvement in the
(quoting
F.3d at
Williams
alleges
She also
that while her son’s Lin-
States,
193, 203,
112 S.Ct.
U.S.
name,
Navigator
coln
was titled in her
(1992)).
I. Application of third-party launder than if she had Proper participated in the actual purchase of the challenges Lastly, vehicle. she contends that court’s determination of her Guidelines drug conspiracy is not attributable to hel- 2S1.1(a)(1). sentencing range based on as relevant conduct because her conduct (a)(1) Subsection determines the base level drug dealing, was “incidental” to her son’s Guidelines to the general knowledge had about her section of the Guidelines on which the drug dealing, son’s and she was never underlying offense would In be based. directly involved in the transactions. case, instance, Ms. Anderson was express While we no opinion on whether funds for a the above facts alone would constitute dealer. The base level for the underlying *6 enough drug conspiracy to attribute the dealing methamphetamine, offense of conduct, Ms. Anderson relevant as we find therefore, would be determined that other in facts the record which 2Dl.l(a). using Before the base level of the district court relied demonstrate that offense, however, the underlying subsec- district court did not err finding (a)(1) tion requires first that two condi- that Ms. Anderson was more in involved (A) tions be met: that the defendant the drug conspiracy. There was evidence responsible offense, underlying for the ei- that occasionally Dennis Anderson used ther because she committed it or it is house, Ms. Anderson’s while she pres- conduct, 1B1.3; relevant as defined in ent, to conduct his (B) op- and that the base underly- level of the eration. receiving This included ship- ing offense be determinable. that We find house, ments of narcotics to the during properly determined that which Ms. Anderson would sometimes re- responsible partici- Anderson was for trieve pay for Dennis Anderson to in pating drug conspiracy, and that the shipment. for the Ms. Anderson also drug quantity occa- for which Ms. Anderson sionally acted as a courier of Dennis responsible should be held was ascertain- drug proceeds, included, able. occasion, on picking up one sums of money, A. Ms. Participated $50,000, around as well as delivering sums in Drug Conspiracy money, usually $20,000, around to Den- Ms. Anderson contends that nis Anderson purchase drugs. so he could cannot responsible Lastly, be held for underly accept guns Anderson would offense, ing and therefore the first condi- from Dennis Anderson to store for him.
325 drug conspiracy pro- that when defendant had enough are to establish These facts in participant a delivery Anderson was vided her house for as a loca- use There is no doubt that a drug conspiracy. drugs tion for and had lied to investigators here between Dennis conspiracy existed monies); regarding ownership certain associates. do not Anderson and his We Johnson, States v. 450 F.3d United challeng- Anderson to be understand Ms. (8th Cir.2006) (finding sufficient evi- 372 only conspiracy, of the ing the existence for a defendant to be dence convicted as participation the exist- challenging in a participant drug conspiracy when he conspiracy ing conspiracy. When had ridden a “chase vehicle” behind connecting “evidence proven, couriers, drug and had driven one of the conspiracy defendant to the particular drug drugs couriers home after the were ” slight.’ States v. ‘need be United delivered); Cruz, United States v. 910 (6th Cir.1999) Gibbs, F.3d (3d Cir.1990) 1072,1083 (finding suffi- (quoting Avery, States v. 128 F.3d drug conspiracy cient evidence for a con- Cir.1997)). that Ms. Given proof viction where there was that delivering large quantities person drug defendant drove another to a pay to Dennis Anderson to person distributor so that the other can drugs plain narcotics while the were purchase drugs, the defendant re- view, permitted use of her house that she sale, that, present mained for the after a transactions, drug and she would house, drug search of one the defendant weapons and store for Dennis accept drove the distributor to another Anderson, that the district court we hold house, and that the defendant failed to finding preponder- correct in that a stop police attempted to make a established that Ms. ance of the evidence defendant).1 The first stop traffic conspiracy Anderson was aware of the prong of the defendant actively in it. See United participated 766, 772 Hodges, which the laundered funds were de- from Cir.1991). While there is no evidence rived, was met this case. narcotics, personally sold drug conspira- her conduct did further the Drug B. The Offense Level for the was, the narcotics and she there- cy to sell *7 Determinable Conspiracy was fore, responsible drug conspiracy. Conrad, prong The second of See, e.g., United States (6th Cir.2007) 424, that the offense level for (finding 429-30 determinable, met in participation in a crime be was also sufficient evidence for attempts cy primarily points to the facts on which to and 1. To the extent Ms. Anderson's conspiracy money laundering charge diminish her role in the can be was based. rejection implicit characterization, however, of the facts taken as an is inaccurate This above, argument recited that is foreclosed while her that constituted because conduct object the factual recitations her failure to to laundering may money have been incidental 32(i)(3)(A). Fed.R.Crim.P. Addi- in the PSR. conduct, drug conspiracy, to the her other tionally, sentencing hearing Ms. Anderson's delivering money to Dennis Anderson such as Officer was continued for three months after quantities purchase large so that he could testimony regarding Ms. Anderson's Hixson’s narcotics, which is relevant drug conspiracy, and participation in the lB1.3(a), laundering charge under U.S.S.G. any contradictory did not introduce drug conspiracy. clearly furthered Cf. hearing. evidence at the continuation of the 2(B) (2005). U.S.S.G. 2S1.1 cmt. n. wants to characterize her Ms. Anderson only conspira- as "incidental” to the conduct $20,000” drugs,” up this case. The district court asked Officer chase “delivered] “the minimal Hixson to estimate amount of that purchase so Dennis Anderson could could drugs which the defendant reason- drugs. J.A. at 105. Because “times” ably have foreseen that Denn[is] Anderson plural, the most conservative estimate is period was involved with over the time that brought Ms. Anderson Dennis [Officer Hixson] [Ms. believed $20,000 pay drugs on at at was involved.” J.A. 116. Of- occasions, Anderson] least two which at least makes responded ficer Hixson that the “minimum $40,000 of metham- figure pounds” would be estimated 3 of phetamine. proof further established methamphetamine. at 116. J.A. This esti- that Ms. Anderson had at least once mation allowed the district court to deter- $50,000 picked up at least of drug mine the offense level 2D1.1. Moerland, from Dennis Anderson and Mr. brings partic- Anderson’s total disputes Hix- Officer ipation $90,000 conspiracy to at least testimony son’s allowed the district court methamphetamine. worth of Hix- Officer drug quantity. determine son estimated that Ms. Anderson was re- primary argument Offi- sponsible pounds for three of methamphet- merely speculating cer Hixson was or amine, $1,100 which sold for at per least guessing quantity as to the of metham- approximate ounce and therefore had an phetamine Ms. Anderson could have fore- $52,800. value of argument seen. She bases her on the fact that when Officer Hixson was asked if the While Ms. Anderson contests these esti- three pound figure guess, was a he an- “speculation” mates as mere part on the swered, “That’s correct.” J.A. Hixson, Officer Officer Hixson arrived at the three-pound figure through legitimate
We find that the district court’s methods. drug quantity clearly determination Officer Hixson testified was not clear ly A he arrived at drug quantity three-pound figure erroneous. need by taking price be established preponderance methamphetamine, evidence, and an estimate will which he knew through suffice so his “involvement in long as it errs on drug investigations,” the side of caution and J.A. at likely quantity underestimates the drugs “[c]onverting money dope.” into J.A. at actually attributable to the defendant. See 118. The district court had advised Davis, United States v. 911 Officer Hixson that “it’s fair to approxi- (6th Cir.1992); accord 2D1.1 drug quantities mate using money that (2005) (“Where cmt. n. 12 there is no drug could have been ... purchase used to ..., seizure approximate court shall drugs.” J.A. at 116. It is clear that Offi- quantity that, the controlled substance. just cer Hixson did because the evi- *8 determination, In making this the court dence established that Ms. Anderson had consider, may example, $20,000 for price gen the delivered on at least two occasions erally obtained for the controlled sub so that Dennis Anderson purchase could ”). .... proof stance The drugs was that Ms. and that Ms. picked Anderson had times,” Anderson had at “at $50,000 i.e. “whenever up at least drug money of from pur- [Dennis needed to Anderson] Dennis Anderson on least one occasion.2 words, 2. In other purchase Officer Hixson knew Ms. for the of on at $90,000 occasions, responsible Anderson was for at least least two and because she had $50,000 methamphetamine, worth of picked up because she drug money had at least of on $20,000 delivered cash Dennis Anderson at least one occasion. Mr. Hixson also knew
327
2Dl.l(b).
§
it
The general application
held that
is of
many
have
times before
We
lB1.5(b)(l) (2005)
drug
§
a district court to estimate
in U.S.S.G.
proper
principle
for
of cash
on
amounts
known
to use the
quantities
“[a]n
states
instruction
narcotic-quanti-
convert that cash into
guide
and
from
offense level
another offense
ob-
price generally
“the
ties based
the
from the
line refers to
offense level
See
the controlled substance.”
tained for
(i.e.,
guideline
entire offense
the base of
Salas,
v.
F.3d
641
States
455
United
level,
characteristics,
specific
fense
offense
Cir.2006)
§ 2D1.1
(quoting U.S.S.G.
[etc.]).”
2Sl.l(a)(l)
Section
states
(2004)).
281.1(a)(1),
§
12
of
cmt. n.
Use
level
launder
the base offense
(A)
therefore,
Ms.
was correct because
underly
offense
ing
“[t]he
con-
in the
Anderson was involved
from
ing offense
which the laundered
(B)
of metham-
quantity
and
the
spiracy,
According to
funds were derived.”
for which
phetamine
Ms.
lB1.5(b)(l), therefore,
§
offense lev
“[t]he
approximated.
could be
entirety,
in its
applying
el” means
2D1.1
than
offense
rather
2D1.1’s base
Specific Adjustments
II.
level section. See United States v. Cruza
the
that because
contends
(1st
do-Laureano,
48 & n. 9
§ 2D1.1 ac-
court cross-referenced
district
Harmon,
Cir.2006);
cf.
2S1.1(a)(1),
the district court
cording to
Cir.2005);
see also
required
apply
specific
was also
C,
supp.
app.
Amend.
2Dl.l(b).
The
characteristics of
offense
(2002) (“[S]ubsection (a)(1)
sets
base
district court
government concedes the
at the
...
offense level
offense level
also
respect.
in this
Ms. Anderson
erred
(ie.,
of
offense
the base
should not
avers that
level,
characteristics,
specific
fense
offense
on
adjusted the
level based
have
offense
[etc.].”)).
Anderson,
was
of
characteristics
specific
offense
safety
arguably eligible for a two-level
2Sl.l(b).
government argues
2Dl.l(b)(7).3
pursuant to
valve reduction
so,
doing
the district court was correct
accordingly
Her
level would have
offense
additionally points
and
out that
thirty-two,
from
reduced
been
a re-
by giving
erred
calcula
drug quantity
from
obtained
conspir-
for a
role
duction
tion,
thirty.
acy.
Application
Specific
B.
Offense
Application
Specific
A.
Offense
2Sl.l(b)
§of
Characteristics
2Dl.l(b)
Characteristics of
correct, how
ap
The district court was
by not
The district court erred
ever,
applied
specific
offense
characteristics
plying
specific
sells,
$17,600,
methamphet-
methamphetamine typically
pound
the cost of
Anderson,
amine,
roughly
equals
pounds).
least
5.11
for at
was sold
Dennis
$1,100 per
are sixteen
ounce. Because there
methamphet-
pound,
pound
in a
ounces
evalu-
On remand the district court should
$17,600. Officer Hix-
amine would be worth
in fact meet
ate whether Ms. Anderson does
then,
par-
pounds,
adjustment
requirements
son's estimate
three
for a
downward
(b)(7).
ticularly
1.1
We do not hold
conservative because
2D
*9
qualified;
only
that the
responsible for over five
we
hold
could have been held
that she is
($90,000,
it could
the
erred
pounds
when it held
district
specific
money
the
offense characteristic
drug
to Ms. Anderson’s
not consider
attributable
1.1(b).
§
conspiracy,
adjustments under
2D
participation
in
divided
the
2S1.1(b).
lB1.5(c)
§
conspiracy.
§
characteristics
located
provides
U.S.S.G.
support
position.
for this
It
While Ms. Anderson
contends
states that
2S1.1(a)(l)’s
to,
by
the offense level is determined
case,
§
“[i]f
instruction
this
...,
guideline
reference
another
the
only
§
§
use
2D1.1 means
2D1.1
adjustments
Chapter
(Adjust-
three
should be used to determine her Guide
ments) also are
in respect
determined
range,
general application
lines
princi
the
guideline,
the referenced offense
except as
ples
rejects
§in
an argument.
1B1.5
such
2(c)
expressly provided.”
otherwise
Note
2Sl.l(a) provides
Section
two methods to
2S1.1,
commentary
§
money
determine the base
level for
offense
provides
express
such an
exception: “Not-
method,
here,
laundering. One
used
tois
lB1.5(c),
withstanding §
in cases in which
use the “offense level for the underlying
(a)(1) applies, application
subsection
any
2Sl.l(a)(l).
§
offense.” U.S.S.G.
The “of
Chapter
adjustments
Three
shall be deter-
2D1.1, then,
fense level” from
con
mined based on the
offense covered
purposes
stitutes the base
level for
offense
(ie.,
guideline
the laundering
criminally
C,
§of
supp.
app.
2S1.1. See
”
funds)....
derived
(2002) (“[Sjubsection (a)(1)
Amend. 634
determining
When
whether Ms.
sets the base
level at the offense
offense
Anderson deserved a reduction under
(le.,
level ...
for the
offense
3B1.2(a)
her role in the of-
level,
specific
base offense
offense
fense
money
where the offense is
launder-
[etc.].”)
added)).
characteristics,
(emphasis
ing, it is clear that Ms. Anderson deserved
Thus, applying
specific
offense charac
Indeed,
no reduction.
2 in
note
the com-
2Sl.l(b)
teristics under
to the offense
mentary
§to
3B1.2
that multiple
states
level obtained from 2D1.1
proper.
was
participants
required
are
for a mitigating
(“The[
(b)
]
See id.
[subsection
] enhance
role reduction
particular
for a
defendant.
ments are designed to [] ensure that all
While Dennis Anderson no
request-
doubt
money
direct
launderers receive additional
ed that Ms.
Anderson launder the
punishment for committing both the mon
him,
only person
Anderson was the
ey laundering offense and the underlying
actually
who
criminally responsible
----”);
offense
see also Cruzado-Lau
money.
Additionally, even
reano,
(“The
ing a four-level reduction Range Guideline 3B1.2(a). argued Anderson had that she was entitled to a four-level reduc level, therefore, Ms. Anderson’s offense tion for her mitigating role in should have been calculated as follows. As argument 4. We note ly that at oral improper- this four-level reduction was Anderson's ly granted. counsel conceded that it was like- *10 range.” Guidelines above, lating applicable of- the Anderson’s base detailed should S.Ct. at 596. Guidelines thirty-two “[T]he and then began at fense level starting point and the initial bench- thirty to under be the been reduced should have 2Dl.l(a)(3).5 mark,” sentencing so as to ensure fair Ms. Anderson’s § twenty-eight to to nationwide further reduced “administration and secure level was 2Dl.l(a)(7). Furthermore, consistency.” §to See U.S.S.G. Id. the Court pursuant 2Sl.l(a)(l) (2005). 3553(a) specific held, Applying explicitly § the fact that “[t]he 2Sl.l(b) § in- of the sentencing offense characteristics directs courts to consider to offense level supports premise Ms. Anderson’s Guidelines that dis- creased then should have thirty. begin analysis courts must their with trict pursuant cognizant a three-level reduction remain of received the Guidelines and 3E1.1, ac- sentencing process.” of Ms. Anderson’s throughout to because them a as well as ceptance responsibility, of Id. at 596 n. 6. If the district court decides gov- to the pursuant three-level reduction to a defendant outside sentence for Ms. range, 5K1.1 motion then the district court ernment’s Guidelines to the substantial assistance extent of the deviation “must consider the lev- justification Ms. Anderson’s offense is suffi- government. and ensure therefore, adjusted twenty- el, support degree ciently compelling would which, a crimi- four, combined with it un- Court] f[ou]nd the variance. [The I, a recom- category yields major departure history nal controversial fifty-one to sentencing range significant a more supported mended should be court, The district Id. at 597. sixty-three justification months. than a minor one.” however, Anderson’s of- “must Appeals calculated Ms. the Courts of appeal, On yielded a twenty-two, level as which that the district court commit- fense first ensure error, range forty- sentencing procedural such as significant recommended ted no (or fifty-one calculat- failing improperly one to months. to calculate failing .... or ing) Guidelines sentence- adequately explain chosen III. Harmlessness including any an deviation explanation outset, that it At the we note range.” Id. from the Guidelines determining unclear that an error is consis- focus on the Guidelines can ever be This recommendation Guidelines other recent sentenc- tent with the Court’s post-Gall. harmless Gall clear considered v. Book- ing precedent. In United States sentencing courts ly the focus of directed er, 220, 245-46, instance, 125 S.Ct. 543 U.S. For the Court to the Guidelines. (2005), the Court held all L.Ed.2d 621 begin court should held that “a district required to “consid- sentencing courts are by correctly calcu- sentencing proceedings then, 1.1, § 2D sentenced under incongruous provide a two- may It seem (a)(3), a four-level reduc- would have received § 2D she reduction under 1.1 then also 3B1.2. She tion premises the defendant actu- the reduction on two-level received an additional receiving adjustment 3B1.2 would have ally under (a)(3). offense, ap- provided by 2D1.1 It upon mitigating in the reduction role reduction under pears, receive a miti- Anderson should not when Ms. (a)(3) defendant apply if the 2D1.1 should gating adjustment under 3B1.2 because role drug conspira- mitigating in the played a role play mitigating role in the did not did, court, cy, even if Anderson as Ms. offense. The district reduc- actually receive the four-level played a did not found that Ms. play a she did not conspiracy. tion under 3B1.2 because If Ms. role in the *11 330 203, range. 1112, er” the Guidelines The Court held 112 117 S.Ct. L.Ed.2d 341 — States, Kimbrough (1992), all, v. United U.S. requires after party who
-, 558, 564, 169 L.Ed.2d 128 S.Ct. 481 wishes to “per- defend the sentence to (2007) added), (emphasis sentencing suade the court appeals that the district range courts “must include the Guidelines court would imposed have the same sen- array warranting in the of factors consid- tence absent the erroneous factor.” We States, Lastly, eration.” in Rita v. United decide, however, do not how “rare” it will — -, 2456, 2468, 127 U.S. S.Ct. 168 be for a calculation error be Guidelines (2007) added), (emphasis L.Ed.2d 203 found harmless.6 a sentencing Court held that while Invoking the Williams standard normally ... explain why “will he has review, government of harmless error rejected” arguments government from the asserts that the district court’s Guidelines and the particular defendant for a sen- calculation error was harmless. sup For tence, judge “the explain why will he has port that the sentence would have been the [imposed a sentence outside the Guide- same absent the Guidelines calculation er lines].” ror, government points to statements With such focus on the Guidelines made the district court after it sen range, may recommended it be that an tenced Ms. Anderson. The district court calculation, incorrect Guidelines which is a stated: error,” Gall, “significant procedural 128 Court, taking into account the fac- 597, ever, rarely, 5.Ct. at can if be found 3553, tors stated Section has deter- harmless. If premise from which the mined that this appropriate is the sen- district court begin sentencing must its case, tence this all the 6, analysis, incorrect, id. at 596 & n. facts and circumstances the Court then it seems that appellate has found apply to this case as well as would have a saying difficult time that the unique personal circumstances and See, result would unchanged. have been background of the defendant. The e.g., United States v. Langford, 516 F.3d Court has also determined that (3d Cir.2008) 205, 215, (“We 217 submit would appropriate be the sentence and improper that the calculation of the Guide- the sentence the Court would im- have rarely lines can be shown not to posed even had the Court determined affect imposed.... the sentence [W]hen that a different sentencing guideline 3553(a) the starting point analy- range applied than the one the Court incorrect, i.e., point, sis is the end applicable. found sentence, resulting rarely can be shown to J.A. 157. unaffected.”). The harmless error standard of review for persuaded by sentences from We are not govern- States, 193, Williams v. United First, 503 U.S. ment’s argument for two reasons. it money laundering Cir.2008), role in the of- 582 we found that a fense. Guidelines calculation error was harmless be- correct, cause even the lower Guidelines rec- already, post-Gall, We have found Guide- statutory ommendation was above the maxi- lines calculation error harmless. In United mum, which was the sentence the district Lalonde, States v. 509 F.3d imposed court had on the defendant. We Cir.2007), imposition we held that of a two- found, improper have also that an upward adjustment was harmless be- upward adjustment one-level was not harm- cause the district court had stated that less, despite the fact that the correct Guide- imposed up- would have a different two-level range overlapped lines with the incorrect adjustment improper ward if it was in fact Goodman, apply upward adjustment range. the two-level Guidelines United States v. it had Jeross, applied. (6th Cir.2008). In United States v. 521 F.3d court chose noteworthy that the district America, UNITED STATES within the incor- *12 to sentence Plaintiff-Appellee, it had calculated. range rect Guidelines Cf. Brown, 519, 522 v. Cir.2006) in consid- (holding an error PENSON, III, George where the Defendant- harmless ering the Guidelines W. four-levels). departed upward Appellant. district court had, Second, prior No. 06-3419. Anderson, intimated sentencing im- range was an incorrect Guidelines Appeals, Court of United States sentencing decision. factor its portant Sixth Circuit. stated that “be- court had The district 3, March 2008. guide- Submitted: within sentence lieve[d] with afford the Court range w[ould] line May Filed: Decided and appropriate authority impose factors in into account the taking sentence ” at 155. Given this J.A. Section 3553.... that “the district cannot find
ambiguity, we sen- imposed have the same court would the erroneous factor.” See tence absent Williams, 1112.7 112 S.Ct. 503 U.S.
CONCLUSION reasons, the district foregoing For the and the court’s sentence VACATED resentencing REMANDED for case is opinion. consistent with
CONCURRENCE BATCHELDER, Circuit ALICE M. concurring. Judge, emphasize separately I write we holding, now nor have that we are not held, calculating that an error ever advisory range can never be Guidelines States v. Hazel harmless. See United Cir.2005). wood, providing different reduction. Anderson's success on 7. We note that Ms. Anderson, only a likely to receive perverse result. appeal in a has concluded greater remand because sentence on While was correct that she higher. re- Such a will be depriving Guidelines her of made a calculation error sult, take reduction, risk defendants is the that the district failed to realize appealing their sentences. greater error in her favor had made a