United States v. Booker, Charles

custodian; than a mere far more Day was solicited, accepted, who a broker

he was by re- assets plans’ pilfered and then insur- purchase promise on his neging the facts members. On plans’ ance Day simply here, hold presented “authority or control” sufficient exercised plans’ assets “disposition” over dispo- “fiduciary” under qualify clause. sition

Ill above, the forth set For the reasons judg- summary entry of District Secretary is in favor of ment Affirmed. America, Appellee STATES UNITED BOOKER, Appellant. Charles

No. 04-3152. Appeals, Circuit. of Columbia Dec. 2005. Argued 3, 2006. Feb. Decided Rees,

Thomas S. Assistant U.S. Attor- ney, argued the cause for appellee. With him on the brief were Kenneth L. Wain- stein, Fisher, John Attorney, U.S. R. As- sistant U.S. Attorney the time the brief filed, and Tourish, Thomas J. Jr. and Pan, Florence Attorneys. Assistant U.S. III, McLeese, Roy W. Assistant At- U.S. torney, entered an appearance. GINSBURG, Before: Chief Judge, and SENTELLE, Judge, Circuit WILLIAMS, Senior Judge. Circuit for Opinion by the Court filed Circuit Judge SENTELLE.

Concurring opinion by filed Senior Judge Circuit WILLIAMS. SENTELLE, Judge. Circuit Charles Booker appeals his conviction and imprisonment pos- for “constructive session” of a argues firearm Booker support there was insufficient evidence to his conviction and that his sentence must be vacated and in light remanded of Unit- ed (2005). L.Ed.2d Because we

agree only with argument, Booker’s second we affirm his conviction for “constructive firearm, possession” of a but we vacate his sentence and remand District Court proceedings for further with consistent opinion. this

Background I. January

In officer undercover D.C. Metropolitan Depart- Police approached ment Booker and ex- Charles pressed in purchasing interest some crack While officer cocaine. waited car, unmarked ran about 50 feet up street and returned or 20 sec- Newport with a cigarette pack. onds later Davis, court, Mary E. appointed pack, From the Booker shook out two argued cause for Ziploc bags containing and filed the brief small crack cocaine appellant. one to officer in gave return guns proximity, expert testimony funds. The undercover prerecorded

$20 drugs marriage. They are “like a left, up back Booker walked officer Unhelpfully, the other.” pack. can’t do without Newport street re-hide par- is not included photograph later, several uni- or three minutes Two However, in this case. ties’ submissions arrived to arrest Booker. officers formed government’s does contest the Booker not the team asked of arrest One member approxi- was gun lying that the assertion outside, doing was and what he Booker away Newport from mately five inches the looking was for he responded Booker gun that the pack, nor does Booker contest Officer Michael Newport cigarettes. his frost-free, notwithstanding and was clean team, Penn, member of the arrest another a bitterly fact that recovered on the was feet the and up then walked 50 street evening. cold winter Newport lying the pack on found Booker’s government’s close the case-in- Penn down investi- At the of ground. bent When chief, judgment Booker for of handgun “right he a be- moved a gate, saw black The Court denied cigarette pack. acquittal. the District the Newport side” motion. The defendant then called his in- charged in a four-count Booker was witness, only private investigator, a who unlawful distribution of co- dictment for photographs introduced additional base, caine in violation of U.S.C. neighborhood in which Booker was arrest- (b)(1)(C) (Count 841(a)(1) One); un- § According private ed. to the defendant’s possession with intent to distribute lawful investigator, Booker was arrested base, in violation of U.S.C. cocaine away gun-and- from the feet—not feet— (b)(1)(C) (Count 841(a)(1) Two); § us- drugs stash. ing, possessing a firearm dur- carrying, offense, trafficking in renew motion for ing drug violation Booker 924(c)(1)(A)® (Count § judgment of at the close of all the acquittal of 18 U.S.C. 10, 2004, Three); jury of possession May unlawful a fire- evidence. On the found all person appellant guilty arm and ammunition convicted on four counts. On 16, 2004, by imprisonment May the defendasit moved for a punishable of crime or, alternative, in exceeding year, acquittal in violation of the term 924(e)(1) 922(g)(1) trial. §§ for a new The District Court denied 18 U.S.C. (Count Four). motions. trial, evi- October the District Court government

At introduced On loaded, gun imposed and the a sentence under the Guidelines dence that One, pack grams 3.8 of co- 240 months on 240 months Newport contained Count Two, Three, base, Although on months on pure. caine 75% Booker’s Count Count gun on neither the nor and 360 months on Count Four. The terms fingerprints were One, Two, on Newport government linked and Four were to run pack, Counts concurrently, drugs through Booker to while Count Three was to undercov- sale; testimony to all drug consecutively er officer’s about the run other counts. Thus, government imposed ag- also introduced evidence the District Court years in previously gregate has sold crack us- Guidelines sentence of 35 (i.e., ing prison. dis- operandi Pending same modus Court’s de- pensing Newport pack from a cision in crack U.S. (2005), government same 125 S.Ct. 160 L.Ed.2d neighborhood). judge announced a gun drugs by then offer- also linked ing physical evidence of their non-Guidelines “alternative sentence”: ten photographic One, years ten Count years on Count on evidence on grounds waiver cause[s] ” Two, Three, years five on Count miscarriage justice.’ ‘manifest years on Count Four. Counts One and Two Thompson, States v. (D.C.Cir.2002) concurrently. Count

were be served (quoting United States v. Four was to served consecutively Sherod, be (D.C.Cir.), years on denied, ten Counts One and Two. Count cert.

Three was to to all consecutively be served (1992)). 121 L.Ed.2d 385 We note that Thus, other counts. Booker — like the defendants Thompson imposed an aggregate “sen- non-Guidelines and Sherod — failed to renew his MJOA at years prison. tence” The District of all close the evidence. Unlike the judg- entered both sentences on the Sherod, in Thompson defendants and how ment form. ever, Booker did renew his MJOA after jury verdict. Insofar as the “miscar Sufficiency

II. of the Evidence riage justice” of standard is intended sim ply to ensure that the District Court has A opportunity to order an MJOA after “any We will affirm a conviction where receiving evidence, Sherod, all the see 960 rational trier of fact could have found the 1077, F.2d at post-verdict Booker’s motion of the beyond essential elements crime a may preserve objec be sufficient to reasonable Jackson v. Virginia, doubt.” the sufficiency tions to of the evidence against him. We need not determine this (1979) L.Ed.2d (emphasis in original); case, present issue in the because for the Wahl, see also v. United States 290 F.3d below, reasons forth set we conclude a 370, 375 We do not distin- juror rational could have convicted Booker guish between direct and circumstantial “possessing” for handgun. evidence, give “full play we right jury credibility, to determine

weigh justifiable the evidence and draw B inferences of fact.” United States v. argues prosecution Clark, (D.C.Cir.1999) 184 F.3d that “possessed” gun establish he for (internal quotation marks and citations of purposes either Three or Count Count omitted). We “review the rec- evidence of gun Four because the not found on his novo, de considering ord evidence person, it, holding no one saw him and no light most favorable to govern- fingerprints were recovered from it. How Wahl, ment.” 290 F.3d at 375. ever, have long “possession” held that Ordinarily, appellant seeking “an purposes §§ for of 922(g)(1) both jury overturn a verdict for evi insufficient 924(c)(1) “may be actual either or con exceedingly heavy dence bears an burden.” Alexander, structive.” United States Salamanca, United States v. 990 F.2d (D.C.Cir.2003) 331 F.3d (uphold (D.C.Cir.1993). However, where de ing § a conviction 922(g)(1) under on the fendant fails to renew his motion for a basis of “constructive possession”); see (MJOA) acquittal of under FED. Wahl, also (upholding F.3d at 375-76 29(a) R. CRIM. P. at the close of all the 924(c)(1) § conviction under on the basis of evidence, his burden is even heavier: He possession”). “constructive “has waived his right sufficiency raise a of evidence claim on appeal” unless agree government We with the “declining to sufficiency consider the ample of that there was to justify evidence caselaw, “has prior with our which fre that Booker “construc- jury’s verdict drugs go handgun quently recognized guns pur-

tively possessed” together trafficking.” Three Count drug of Count both poses possession McLendon, is estab- Four. “Constructive finding supporting (D.C.Cir.2004); with evidence States v. lished see also United ability (D.C.Cir.2003) had the to exer- Brown, defendant over and control knowing cise dominion drugs present are often (noting guns and Wahl, 290 F.3d at question.” items in therefore, together, presence (internal marks and citations quotation presence infer one can be used to omitted). to a “Although proximity mere other); Conyers, constructive is insufficient establish gun (D.C.Cir.1997) (same); 755, 757 Unit F.Sd fac- evidence of some other possession, Payne, 1065-66 ed States v. gun, proof with a including connection (D.C.Cir.1986) (same). Thus, tor— we reaffirm control, motive, implying eva- gesture possession that “evidence of a defendant’s conduct, in- indicating or a statement sive can be used to show his [guns] properly enterprise coupled volvement in an McLendon, — to [drugs],” connection Alexander, may suffice.” proximity 1113, at versa. See United F.3d and vice (internal quotation marks F.3d Evans, 891, States v. 888 F.2d omitted). case, In citations this several (D.C.Cir.1989) (“The government present the “plus factors” allowed Alexander-type ed evidence that three [all defendants] “connection with jury to infer Booker’s engaged [drug] in a common enter were drug gun.” government’s expert The [the] prise. jury From this evidence could drug dealers have a “mo- testified that reasonably all infer that three shared di namely, defense of themselves and tive”— to, dominion and rect access control carry guns. The drug their stashes —to over, knapsack,” the which contained both (through officer watched police undercover guns.), cocaine and cert. denied sub nom. mirror) up Booker as walked rearview States, 1019, Curren United 494 U.S. gesture implying made “a the street and (1990); 110 S.Ct. 108 L.Ed.2d 500 was gun, control” the which stashed over Case, In re F.3d compare Sealed Newport pack. immediately next (D.C.Cir.1997) (holding was in there indicating Booker made “statement then support sufficient to evidence constructive when told enterprise” involvement in an he possession physi of a gun because was looking the arrest he was for his team grab to cally impossible for the defendant Newport Coupled with the fact cigarettes. sale). gun during drug the the the more than 50-80 stash was never away these con- feet from factors markedly case from In This differs re ample stitute evidence to find constructive There, the defendant re- Sealed Case. possession under Alexander Wahl. mained inside while his broth- restaurant car, a drug er conducted sale in a which Moreover, indisputable Booker’s “do- parked the restaurant. When Wahl, was outside drugs, minion over” the and control police the defendant and his the arrested supports 290 F.3d at further our con- brother, they under gun discovered “constructively possessed” clusion that he of the car. held there driver’s seat We drug The nearby gun. government’s support was insufficient evidence to expert unique testified about the relation that the defen- firearms, District Court’s conclusion drug between stashes and stat- gun “constructively possessed” dant ing that often “can’t do without the spatial testimony separation other.” because the between the expert’s The accords defendant, drugs preclud- claim gun, under the harmless error standard. exercising Coumaris, him ed from “dominion con- See United States v. over firearm during

trol” transac- justify “To rever- Here, contrast, by sharp tion. See id. sal of a standard, conviction under that easily grabbed gun (1) (2) could have error, there must be that ‘affect[s] (either during the sale he drug when went substantial rights’ i.e., that is prejudi- — pick Newport pack, up cigarette Perkins, cial.” United States v. it). he went when back re-hide (D.C.Cir.1998) (quoting Fed. R. gun proximity drugs sug- and the 52(a) Crim. P. and citing United States v. gest they by per- were stashed the same Olano, 725, 731, 734, son, part [drug] “aof common enter- (1993)). 123 L.Ed.2d 508 The gov- Evans, prise,” F.2d at and the ernment bears burden of proving that lack of frost and dirt on gun suggests prejudice result from the error. Finally, it had been stashed recently. Olano, See 507 U.S. at 113 S.Ct. 1770. drug-vendor Booker was a veteran in his case, In this it is beyond clear a reason- high-crime neighborhood, and he doubt- able doubt that Booker prejudiced by lessly carry gun had a motive to error, the sentencing as evidenced protect himself and his illicit assets. See willingness to sentence Jefferson, States v. only years him to if (D.C.Cir.1992) (concluding there “was mandatory rendered the application of the guns sufficient evidence were Guidelines unconstitutional. What is un- present protect ‘to drug [the] traffickers clear, however, is the appropriate remedy. ”) (quoting and their investment’ United Because ‘judgments, “we are to review not Anderson, 1128, v. 881 F.2d ” opinions,’ previously we have held a sin- (D.C.Cir.1989)). (in gle judgment the form of 46-month circumstances, juror In these a rational sentence) imposed under independent two reasonably could conclude con- necessarily rationales not erroneous structively possessed gun lying the next to simply because one of its supporting ratio- drugs, certainly and it is not a “mani- nales was erroneous. Simpson, F.3d justice” miscarriage fest affirm the (internal quotation at 1184 marks and cita- jury’s Accordingly, verdict. we affirm omitted). point out, tions We hasten Booker’s conviction on Three Count however, Simpson that did not limit our Four. Count review to the the judgment four corners of form. at (extensively See id. 1185-90 re- III. The Sentence viewing portions of sentencing the tran- A Thus, script). Simpson did hold that a government Booker and the agree judge that sentencing could render harmless sentencing the court committed constitu- mandatory application the of the Guide- second, tional error applying by entering the Guidelines as lines independent mandatory. 746; “judgment” See S.Ct. in the form of an “alternative Ayers, United States v. we specifically, expressly sentence.” More (D.C.Cir.2005); Simpson, holding United States v. did not extend our a to case—such as this one—in which Court Where, here, a imposed defendant entered a a different “alternative sentence.” timely objection and valid to an error n. (noting be- See id. at 1184 have we never Court, fore the District we review his had what the ap- “occasion consider Guidelines, sentencing dis- if the Under disposition would be propriate judge impose no reason to “alternative had [Guidelines had announced trict court unsurprising It is sentences.” therefore an] alternative sentence” sentence nor find parties that neither we could lengths). different guidance on “alternative sentences” supple- argument, we called for At oral caselaw After pre-Blakely or treatises. sim- we should briefing on whether mental Supreme cast doubt over Court Court’s “alternative affirm the District ply Sentencing constitutionality of the federal sentence,” we must vacate or whether Guidelines, Blakely Washington, v. see fur- and remand for Guidelines 2531, 159 n. 124 S.Ct. U.S. sup- government The ther proceedings. (2004), appellate L.Ed.2d 403 at least sup- while Booker option, former ports judges suggested sentencing court forth the reasons set ports the latter. For in impose an “alternative sentence” should below, Booker. agree with sentence, pending addition to a Guidelines Supreme decision in Booker. B Hammond, See, e.g., United States at the outset that “alternative We note (4th Cir.2004) (dicta). How- innova- post -Blakely is not a sentencing” ever, concept of “alternative sen- constitutionality of Doubting tion. ac- tences” not command universal shortly promulgation after their Guidelines Johnson, See, e.g., claim. judges imposed pre-Guide- some (S.D.W.Va.2004) F.Supp.2d sen- along with “alternative lines sentences holding (rejecting Hammoud and “alterna- with the Guide- comported tences” ju- is with the tive inconsistent upheld lines. After obligation dicial to reach a decision and constitutionality Guidelines court”). the role of the undermines States, Mistretta (1989), majority circuits have 102 L.Ed.2d 714 question post -Blakely how to considered the has disagreed courts over appellate held that a lower “alternative sentence” differing “alternative sentences.” handle Smith, requires higher v. F.2d the vacatur of a Compare States 888 Guidelines United Cir.1989) (10th 720, (holding pro 2 an sentence and a remand for further n. 722 a ceedings. under Three circuits have vacated imposed “alternative sentence operative” after for re- Sentencing is Guidelines sentence and remanded Guidelines Feekes, Mistretta), considering sentencing v. without whether United States Cir.1989) 1562, (7th they simply affirm a lower “alterna (holding 879 could F.2d 1568 that “alterna- tive See v. Hart argue is “incorrect” to an sentence.” (2d 351, Cir.2005); field, Fed.Appx. ... into. after 138 352 sprang tive effect” sentence Mistretta). Fed.Appx. 153 parties Lampkins, nor the United States v. Neither we 2005) (4th 176, Nov.3, (per ana- 178 cu could a Cir. find Mistretta-era case Jackson, (if riam); lyzed any) of United States v. 147 Fed. legal the standalone effect Cir.2005) (11th 109, cu Supreme Appx. (per 112 “alternative sentence.” The riam). issue, posi adopted soon One circuit same Court never resolved which Cox, in wayside. fell v. tion dicta. See United States v. by See United States 3304022, (6th Dec.6, (8th Cir.1989) Brittman, 827, *4 Cir. 829 2005 WL 872 F.2d 2005). circuit ... A fifth has vacated Guide (noting [sen- “of course two-track resen appropri- lines sentence remanded for tencing] procedure not] be [will future”). cases, tencing ate States in several see United

245 Michel-Galaviz, (8th 946, judgment F.3d Where a v. second is entered Thomas, Cir.2005); 422 court judgment United States v. after the first has become (8th Cir.2005); 665, final judgment 669-70 the second is void.” 49 (8th Judgments Storer, 918, § 413 F.3d 923-24 C.J.S. (2005); States at 150-51 Cir.2005), ap while of its decisions see also Home Ins. Co. Brooklyn v. Life inconsistent, Dunn, pears United States Mer 19 Wall. U.S. (8th (1873) (“To L.Ed.

ryman, Fed.Appx. say Cir. that there can be 2005) curiam). two (per sug One circuit has final ... judgments involves a solec- ism.” (emphasis original)); that it affirm a gested Badger would lower “alter Pharmacol, Co., if v. Colgate-Palmolive all its Inc. “triggers” native sentence” were (7th Cir.1993) Adair, (noting satisfied. See United States v. there (5th 2005). can be Nov.8, “only judgment per case”); one final *5-7 Cir. WL Judgments 9,§ 46 Am. 2D Finally, one circuit has held that lower Jur. (2005) (“A judge, having rendered and requires “alternative sentence” the vacatur signed judgment, one final has no authori- higher of a Guidelines sentence and a re ty Thus, sign another one. after a final mand for the “ministerial of amend task” judgment ]se, has been entered in a ca[ form ing judgment committal “to entry of a judgment second final reflect alternate [lower] sentenced first, same ca[ ]se does vacate the operative which] is the sentence.” United if nothing there is to show that the first is Howe, Fed.Appx. 64 & n. vacated, (foot- nullity.” then the second is a Cir.2005). (10th None of these cases omitted)). It necessary only ... follows consequence judge may impose judg one and that, ment, general rule final judg- judgment when a the written form is a nulli entered, ty ment has once been second or previ no extent conflicts with the ..., sentence, judgment may ously pronounced 772-73; different be rendered id. at until the first shall have been also ex vacated and see Hill v. United States rel. Wam 460, 464-65, appeal pler, set aside or reversed on or error. S.Ct. 56 80 course, may modify incorporate changes 1. Of the District Court or Court to those into a judgment single, preexisting judgment. correct a with Fed. R. See accordance United Lewis, (for P. either a "clear or & error” F.2d n. 21 Crim. assistance”) States, (D.C.Cir.1980); defendant's “substantial and Fed. Poole v. United (for error”). (D.C.Cir.1957). R. Crim. P. "clerical How- F.2d Neither rule ever, prescribe procedures empowers both rules for such District Court to enter a sec- ond, changes, require judgment. independent and both rules the District Lewis, 953; (1936); an “alternative sentence” (holding F.2d at identical L.Ed. 1283 Reid, court’s sentencing harmless the Kennedy v. rendered error). one and Because Booker’s erroneous, only and because sentence was case, orally the District Court In this agree the error was not harm- parties Bureau of the United States instructed less, further we vacate and remand for years for incarcerate Booker Prisons to proceedings. Ayers, See 428 F.3d at 315- Af- then-applicable Guidelines. under the 16. sentence, the District pronouncing this ter authority pro- to no lawful Court had discretionary, post- imposition of a “alternative sentence” nounce a shorter not a “ministerial Booker sentence is no had lawful because the District Court Howe, n. 3. Fed.Appx. task.”3 at 64 judgment. To enter a second authority to sentencing on emphasis Booker’s Given attempted to the District Court extent 765-69, discretion, 125 S.Ct. at judges’ see its of a qualify pronouncement reduce or District on cannot instruct Court entering shorter by sentence Guidelines imposing a judgment remand to enter a judgment on the sentence” “alternative thirty-year disposition sentence. This

form, sentencing pro- original court’s appellate comports accepted practice Lewis, See, e.g., controls. nouncement involving federal cases—such as those 3582(c) § 953; also 18 U.S.C. F.2d see hinge on the District —that (“The may modify term of court not Court’s discretion: imprisonment imposed once it has been that, having It sometimes occurs after not except” relevant under circumstances court here.). considered lower decision error, merely appellate court found thir- Accordingly, we that Booker’s hold or and then reverses vacates remands— ty-five-year was the Guidelines sentence is, judgment it sets the aside and only imposed, the case to the lower court sends back only and it sentence before us to- is the proceedings, further than en for rather day.2 stipulated not to parties Had the tering entry or directing prejudiced the fact that Booker was petitioner. or That is the appellant sentence, look we would to Guidelines finding appropriate course whenever the only to “alternative sentence” determine automatically does entitle of error prejudice non. States v. vel Cf. appellant judgment, petitioner (D.C.Cir.2005) Coles, 764, 767 appellate court conduct cannot curiam) (per assessing that “in (holding conduct) (or chooses not to the further whether the District Booker error ques inquiry necessary to resolve the prejudicial, we must determine wheth- litigation. Our remaining tions materially er there would have been cases, full books are of such from Glass result, different more favorable the de- (1794), 1 L.Ed. Betsey, 3 Dall. fendant, imposed in had the sentence been Russell, 415, 1 3 Dall. sentenc- and Clarke post-Booker accordance with ing regime”); (1799), Simpson, 430 at 1191 L.Ed. 660 Vernonia School course, judge 3. 2. the sentence” is not Of if the district is still satis- Because “alternative previ- fied the that the from record judgment, embodied in we have no occasion ap- ously the announced as an alternative is to it under error stan- review the harmless disposition, may propriate it be in order well dard. simply to than sentence on the record rather having hearing. another full-blown Acton, WILLIAMS, Judge, Dist. v. 515 U.S. Senior Circuit 47J (1995), concurring. S.Ct. L.Ed.2d 564

Tuggle v. 516 U.S. Netherlands concur, I anomaly but note an and a (1995). 283,133 S.Ct. L.Ed.2d 251 anomaly distinction. The is between this United, States, 163, case and ones like 516 U.S. United States Stutson 177-78, Simpson, 116 S.Ct. 133 L.Ed.2d 545

(1996) J., cases, (Scalia, In the dissenting). The latter where district Stutson the court majority take chooses did not issue with what is identical alternative sentences (both the apparently proposition. a self-evident under Guidelines and under an likely estimate of the in outcome the Su- summarize, To our ruling Simpson in preme then-looming decision in original judgment the could is stan$ 543 U.S. applicable here. In Simpson we did (2005)), S.Ct. 160 L.Ed.2d 621 the indeed, the judg- could not—vacate not— no gets judicial defendant new consider- below, cognizable ment as there was no ation at all he persuades unless us that the is, judge’s the application error: of judge’s in imposing mindset the alternative if mandatory as the Guidelines did not enough wasn’t close to what the Here, his judgment. affect the error is Here, prescribed Court in by Booker. Court, prejudicial, the District per- contrast, the where court imposed differ- haps wisely, prejudice us the alerted to sentences, gets ent the defendant at least resulting being to impose from forced the chance that court might district stringent sentence more under manda- grant sentencing hearing, even though torily applied Guidelines than he otherwise (so far as appears) per- district court preju- have done. Since error would fectly anticipated the of post- nature its defendant, of rights diced the we must Booker discretion. judgment. vacate We know no au- thority driven, in empowers us to outcome this case is require the shows, judge opinion enter the court’s by principle district the “alternative sen- tence,” that a previously impose only which he into court can recited case, may judgment. may record. It well be the But there be indeed it other ways likely, will the cat. judg- Although is that he enter the same skin there is a one-judgment principle, appears ment. he will Perhaps determine that he there no hearing categorical against contingent need not hold a be rule resentencing but may simply upon judgments. act All or In record. those alternative Williams v. Illinois, things day. are for that court on another (1970), authority L.Ed.2d for example,

Our is exhausted when we the Su- have preme vacated constitutionality entered on the Court reviewed the basis prejudicial required criminal statute that error. individ- paid

uals who had not the fees fines that part were their sentences the end of IV prison their terms to remain incarcerated above, For the reasons set forth they any until had “worked off’ outstand- judgment of is affirmed ing per day. balances at rate of Id. $5 part, part, vacated and remanded for 90 S.Ct. 2019-20. disallow- While proceedings further consistent with this ing imprisonment such in- where would opinion. imprisonment beyond crease term of So ordered. statutory maximum for the substantive its emphasized

offense, the “not deal holding a fine in nonpayment confinement sen- of an alternative pattern the familiar ” days.’ or 30 Id. tence of ‘$80 S.Ct. at 2023. a con- involve case doesn’t present sentence, as the tingent alternative include the non-Guidelines court didn’t judgment. And sentence anticipated on out- based contingencies may, Court decisions comes from con- course, problems different pose con- tingencies the defendant’s based on be, may whatever those issues duct. But speak to our here doesn’t decision solve judgments of such availability posed problems such as those transition Washington, Booker/Blakely 159 L.Ed.2d (2004). LUTKEWITTE, Appellant

Janet L. GONZALES, Attorney Alberto General, Appellee.

No. 04-5058. of Appeals, States Court Circuit. Columbia Argued Oct. 2005. Feb. 2006. Decided notes (if analyzed legal the standalone effect any) Today an “alternative sentence.” In the sentencing, context criminal we address that issue. we Because we con long recognized pronounce have “that the an “alternative is not clude sentence” real ment of judgment sentence constitutes the “sentence,” ly a the parties because States, of the court.” Gilliam v. United prejudiced by concede Booker was There Guidelines, mandatory application of the fore, pronounces once court criminal vacate the sentence remand for “judg sentence —which constitutes proceedings. further ment” —the has no lawful authority court supplement with a second C sentencing one.1 judge’s Because the oral begin “general with the pronouncement We rule constitutes the only court, can judgment!.] there be one final and because the

Case Details

Case Name: United States v. Booker, Charles

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 3, 2006

Citation: 436 F.3d 238

Docket Number: 18-1320

Court Abbreviation: D.C. Cir.