United States v. WaltersUnited States v. Walters
DеfendanU-Appellant Jason Paul Walters (“Walters”) pleaded guilty to being a felon in possession of a firearm in violation of
BACKGROUND
On December 15, 2002, Walters was charged by a two-count indictment with possession of a firearm subsequent to a felony conviction, in violation of
The presentence report (“PSR”) determined that the imprisonment range under the Guidelines on count 1 was 15 to 21 months,
see
USSG § 2K2.1(a)(6),
1
and that the imprisonment range on count 2 was the statutory mandatory consecutive sentence of 60 months,
see
The distriсt court then sentenced Walters to serve 15 months on count 1 and a consecutive 60 months on count 2. The court also imposed concurrent two-year and five-year terms of supervised release, as well as a $200 special assessment, but no fine. After imposition of the sentence, the court then stated:
I don’t know that I have the power to do this because the 924(c) count just requires everything be consecutive' — that is, the 60 months be consecutive with anything under the other charge. I think I can’t do anything, and so I’ll impose this sentence both under the guidelines and in the exercise of my unfettered discretion if the guidelines were to be declared unconstitutional in whole or in part.
*463 Defense counsel objected and asserted that:
if the guidelines were declared unconstitutional, I would like to come back and argue for a 60-month sentence, not a 75-month sentence, because, as the count’s already pointed out, this seems to be unduly severe from the standpoint of viewing this case outside of the framework of the guidelines.
The district court agreed with counsel and stated, “in the exercise of my unfettered discretion, I would impose a 60-month sentence. That’s an alternative and it’s only in the event the guidelines are declared unconstitutional. In total.” Walters timely appealed.
DISCUSSION
[1] This Court differentiates between the two types of error addressеd in
Booker. See United States v. Villegas,
Here, Walters does not make a
Booker
argument. Instead, Walters argues that a sentence imposed under the mandatory Guidelines system is erroneous under the new
post-Booker
sentencing regime. Walters bases this оn the Supreme Court’s rejection of a remedy that would leave the Guidelines advisory in any case where their application would result in a Sixth Amendment violation but mandatory in all other cases.
See Booker,
The government agrees with Walters that his objection in the district court to the court’s alternative sentence, in the event the Guidelines were held unconstitutional, preserved his
Fanfan
challenge. Regarding the standard of review, Walters urges that the
Fanfan
error argued here is structural and thus insusceptible of harmless error analysis.
See Neder v. United States,
We review a case where the defendant preserved his
Fanfan
challenge in district court under the Rule 52(a) harmless еrror standard.
See Mares,
*464
This Court determined in the context of a
Fanfan
challenge that “[i]t is clear after
Booker
that application of the Guidelines in their mandatory form constitutes error that is plain.”
United States v. Valenzuela-Quevedo,
Whether the government has shown harmless error in the imposition of Walters’s sentence.
The government notes that the district court could not revisit the 60-month stаtutorily mandated sentence imposed on count 2. Indeed, Walters makes no argument to that effect. But the government contends that in any event, the imposition of the 15-month sentence as to count 1 constitutes harmless error because it was a reasonable sentence. To that end, the government urges that the district court took into account the Guidelines, defense counsel’s arguments and Walters’s statements before sentencing, and the PSR, which was prepared in compliance with
The government also contends that for the district court to resentence Walters to a 60-month term of imprisonment, the court would have to reduce Walters’s sentence on count 1 to probation; and the court never indicated that it considered probation to be an appropriate sentence for a felon-in-possession charge, especially where the PSR showed Walters had two prior drug convictions. Finally, the government argues that because the Guidelines were not declared totally unconstitutional and the district сourt must still consider the application of the Guidelines in a post -Booker environment, the court would likely resentence Walters to exactly the same 15-month sentence on count 1 and thus to the same 75-month combined sentence on both counts.
Walters argues that the government fails to show harmless error beyond a reasonable doubt. Walters points to the language of the district court at sentencing indicating that in a
post-Booker
world that allowed for “unfettered discretion,” it would choose to exercise that discretion to conclude that the 75-month sentence it felt constrained to impose was harsher than necessary in Walters’s case (that is, to meet the purposes of sentencing identified in
After close еxamination of the sentencing hearing transcript, we find that the
Fcmfan
error in this case was prejudicial to Walters. The
Fanfan
error affected the sentence Walters received because the mandatory nature of the Guidelines at the time of his sentencing forced the district court to impose at least the minimum 15-mоnth term for count 1, in addition to the statutorily mandated 60-month consecutive sentence on count 2, where the court indicated that Walters’s total imposed sentence of 75 months seemed too harsh.
See Mares,
The government is correct that the district cоurt was “bound by the statute,”
In addition, after the district court indicated it would impose the 75-month sentence alternatively in the event “the guidelines were to be declared unconstitutional in whole or in part,” defеnse counsel objected that:
if the guidelines were declared unconstitutional, I would like to come back and argue for a 60-month sentence, not a 75-month sentence, because, as the court’s already pointed out, this seems to be unduly severe from the standpoint of viewing this case outside of the framework of the guidelines.
In response, the court stated, “Now, that might be true. All right.” The court then elaborated, “No, here’s what I’ll do. That’s true. They’re both gun charges, too. So, in the exercise of my unfettered discretion, I would impose a 60-month sentence.” This exchange similarly indicates that the district court agreed with defense counsel that it was “true” that a 75-month sentence affecting both counts “seems to be unduly severe” when viewed “outside of the framework of’ the pre-Booker mandatory Guidelines.
The govеrnment is again correct that the district court then stated, “That’s an alternative and it’s only in the event the guidelines are declared unconstitutional. In total.” However, we understand the district court’s statement to mean just what it plainly reads — that if the Guidelines were declared entirely unconstitutional, Walters’s alternative total sentence *466 would certainly only be 60 months. This statement does not mean that the district court would certainly choose in its post- Booker discretion to impose 15 months on count 1 for a total of 75 months on “both gun сharges” simply because Booker's result rendered the Guidelines, which the court was constrained to apply at Walters’s sentencing, advisory instead of “unconstitutional” “[i]n total.” Rather, the court gave multiple indications at Walters’s sentencing hearing that resеntencing would likely yield a combined sentence lower than 75 months, specifically just the mandatory 60 months on count 2. In light of this record, the government’s contention that the district court “would likely” resen-tence Walters to 75 months in a post- Booker environment fails. Therefore, we find that the government has not sustained its burden to show harmless error beyond a reasonable doubt here; Walters is entitled to resentencing in accordance with Booker.
CONCLUSION
Accordingly, we VACATE Walters’s sentence and REMAND for resentencing.
VACATED and REMANDED.
Notes
. Although § 2K2.1(b)(5) normally triggers a 4-level increase where the defendant used the firearm in connection with other felonies, which would have increased Walters’s base offense level to 18, the probation officer noted that Application Note 2 to § 2K2.4 instructs that no adjustment under § 2K2.1(b)(5) should be applied because Walters's conviction under count 2 required a mandatoiy consecutive sentence. The probation officer did not recommend any sentencing enhancements. After applying a 2-level reduction for acceptance of responsibility under § 3E1.1, Walters's total offense level was 12 and his criminal history was III.