*1 America, UNITED STATES
Plaintiff-Appellee, BARNETT,
Yervin K. Defendant-
Appellant.
No. 04-5252. Appeals,
United States Court of
Sixth Circuit.
Argued: Jan. 2005. 2005.
Decided Filed: Feb.
Rehearing Denied March *2 Tennessee, Memphis,
Western District Tennessee, Appellant. for David N. Pritch- ard, Attorney, Assistant United States Tennessee, Memphis, Appellee. ON *3 Shankman, Stephen BRIEF: B. Needum Germany, L. of the Federal Office Public for the Defender Western District of Ten- nessee, Pritchard, David N. Assistant Attorney, Memphis, United States Tennes- see, Appellant. for BOGGS, Judge; Before: Chief MARTIN, GWIN, Judge; Circuit District Judge.* MARTIN, JR., J., BOYCE F. delivered GWIN, opinion (pp. of the court. D.J. 531-34), a separate concurring delivered BOGGS, 534-39), opinion. (pp. C.J. separate opinion concurring delivered a part dissenting part. MARTIN, JR., F.
BOYCE Circuit Judge. appeals
Yervin K. Barnett his conviction being posses and sentence for a felon in sion of a firearm violation of 18 U.S.C. reasons, § 922(g). For following we However, AFFIRM Barnett’s conviction. we VACATE the sentence REMAND resentencing court and con sistent with the Court’s decision , —U.S.-, in United States v. Booker (2005). I. early morning
In the July hours of Corey Officer Jefferson of the Mem- phis Department Police responded to a burglary call at 661 Shel Lane. When Jef- address, ferson arrived at the he flashed spotlight his at the residence and observed Shankman, Stephen B. kneeling Of- black male front of a window ARGUED: (al- fice of the long object Federal Public Defender for the with a black in his hand * Gwin, Ohio, sitting by designation. The Honorable James S. Judge District for the Northern District of in a gun fied that the recovered featured initially testified that he
though Jefferson (exhibit two) long black picture was the climbing out of suspect may have seen holding in window). object suspect that he saw the upon seeing suspect, The his hand. Jefferson, object ran down and threw away. drove Officer nearby car and witness called the defense testified gave pursuit. Jefferson Jefferson Bell. Bell testified she was Janice hand object suspect’s in the July until evening with Barnett on the but he was not sure. shotgun, like a looked a.m., p.m. around 11:00 or 12:00 get he was able to further testified that He another presence Barnett had left as he good suspect look” at the pretty “a man, Molist, subsequently who died James *4 During pursuit, the car. ran toward trial. before on a control of his car suspect lost trial, At the district court instructed into a ran over a curb and curve and regarding pos- jury applicable on the law on foot. began to flee house. He then a a felon under 18 session of firearm foot for a suspect on pursued Jefferson The court instructed: 922(g). U.S.C. time, was of until Jefferson period short that the had You should find Defendant of jump sight a fence and lost unable to firearm, if had con- possession of the he then radioed to suspect. Jefferson it, though physi- trol of even it was not where he last officers the location other But, cally possession. it is not his squad and returned his suspect saw the enough that Defendant around perimeter effort to form a car firearm. A defendant known about the the area. only if he had possess firearm [sic] Martin, minutes, Officer Jane Within ten together or control of it either alone unit, department’s canine a member Next, I will talk with someone else. began searching on the scene and arrived possession. and constructive about actual dog apparently fol- the area. Martin’s Next, fur- explain something I want Bar- where Yervin lowed a trail to shed government possession. ther about took Barnett into hiding. Martin nett that necessarily prove have to does not that see- custody. upon testified Jefferson physically possessed the Defendant detained, recog- was able to ing Barnett he you guilty to find him of this firearm for he the same individual nize Barnett as crime. that Lane earlier observed 661 Shel posses- recognizes two kinds The law crouched in front of the window evening sion, constructive possession actual and object in his hand. long dark
with these, if Either one of possession. scene, custody at the Barnett was While Government, enough to proved by the that he was told the officers apparently he possession, actual convict. To establish acting night. response, alone that that prove must Government Barnett testified that he told Jefferson con- physical and Defendant had direct at the that he was the one he saw that he firearm and knew trol over the scene. construc- of it. To establish had control must the Government possession, tive Tina testified that she Officer Crowe right had the prove that the Defendant perform Lane to responded to 661 Shel over the fire- control July physical to exercise investigation crime scene right. that he had arm and knew she recovered During investigation, her physi- intended to exercise And that he yard from the front and chrome rifle black it at sometime either trial, cal control over testi- that address. At Jefferson So, if directly through persons. you conspire other For with someone else to or you something go left with a and kick the front door of a citi- example, if home, home, to come back later to zen’s and invade intending friend home, property take from that without intending to send someone pick upit or permission of or up you, you the homeowner ei- pick else to come and you your partner possession grab ther or decide to would have constructive then, home, you, a rifle from the both of thing, while it was in the actual law, But, under the have exercised control possession your friend. under- it. just over being present stand where something equal pos- is located does not objected The defense and the district prove session. The Government must objection court sustained the to the use of
that the Defendant had actual or con- “conspiracy,” the word as there was no possession structive of the firearm and conspiracy charge the case. The court .... knew he did disregard anything instructed the prosecutor conspiracy said about closing for Barnett argu- Counsel stated argument. line of Counsel for the *5 ment: United States did not use the word “con- people burglaries all that We know do spiracy” again commenting in on the de- they accompanied by when are other theory fense of the case. people. It happen, right. could We all Returning closing, to his counsel for the every burglary hap- know that time a again you “If argued: pens, just person. is not one It could Molist, Molist, Mr. the Defendant and Mr. person.... be another We also heard home; went to the home and broke into the the statements made Mr. Barnett that, Molist, say and let’s it was Mr. who given to Officer Jefferson. did he What gun, had the respon- the Defendant is still you? you tell anybody Did all catch object- sible.” for Barnett again Counsel Maybe, else? ... somebody there was bar, responded ed. a side the court Maybe else. there was. did What Offi- government’s argument: “Those are cer say? Jefferson He didn’t look for facts, that are not evidence. There is Well, person. yes. guess another I that evidence, no anything the record.... there somebody could have been else we know that two that [D]o these were the that? argue did You didn’t that on Di- testimony You heard the of Janice Bell. rect.” During the course of this bench said, Janice Bell that Mr. Barnett was conference, counsel for Barnett admitted accompanied by another man. His Molist, argued theory that he had that name was James Molist. IAnd submit- Barnett, rather than in posses- had been ted his death certificate in this case. At sion of the firearm at the time 11:00 at night, 11:00 or 12:00 o’clock at apparent burglary. per- With the court’s night, pretty that’s late. You remember mission, counsel for the United States con- the burglary happened about around closing by responding tinued his to the 4:00, just a I few hours later. submit to argument “Just, hy- defense’s as follows: you, possible, that it is that Mr. Molist pothetically, if people two broke into a was with night. Mr. Barnett And home, possessed gun, and one of them possibly person. the other law, and then under this Judge as the has closing, rebuttal counsel for you, the United read it to both can charged with States stated: possession your partner of it. Because if possession,
exercises control and control- on this matter.... But going that is then, ling possession, hypothetically, you sentence, be the court’s ais sen- well, law, under do as has been tence a little bit over 22 years, and I you by Her Honor.” instructed believe under totality of the circumstances in this 6; 2003, November convicted On case, that is going to be the court’s being a of a possession Barnett of felon sentence, Mr. Barnett. § 922(g). firearm in violation of 18 U.S.C. sentencing hearing February
At the objection There was no to the district 2004, the district court calculated Barnett’s court’s calculations of the appropriate base offense level under the United States at the sentencing hear- Sentencing posses- Guidelines for “felon ing. sion of a firearm” to be under section 2K2.1, points but then added 2 for his II. possession of stolen firearm under sec- appeal, On Barnett seeks reversal of his 2K2.1(b)(4), points tion and more conviction, alleging insufficiency of the evi- endangerment during flight reckless under prosecutorial dence and misconduct. He yielded adjusted section 3C1.2. This also seeks remand for resentencing light However, offense level of 28. because Court’s recent decision Barnett had been convicted of at least United States v. Booker. We first consid- aggravated three or violent felonies in the appeal er the of Barnett’s conviction and past, required the district court was then address whether his sentence should criminal, sentence him as an career armed *6 be vacated and remanded for resentencing.
which increased his offense level to 33 under section 4B1.4 of the Guidelines and A. imposed statutory mandatory a minimum imprisonment, of 180 months of see 18 argument appeal Barnett’s first is 924(e). § history U.S.C. a criminal With the evidence submitted at trial was VI, 33, category of and an offense level of constitutionally insufficient to sustain the required the district court jury’s finding guilty being verdict him of a to sentence Barnett within the Guidelines in possession felon of a firearm in violation imprisonment. of 235-292 months of of 922(g). 18 U.S.C. Barnett claims that requested Counsel the United States witness who testified that he had sentencing upper range, end of the actually seen gun Barnett with the was while requested Barnett a sentence in the who, Officer according Jefferson to Bar- low end. Barnett to 265 nett, inconsistently “throughout testified imprisonment, months of in the middle of course the trial.” Because of these range, stated: “inconsistences,” argues Barnett that “no Barnett, case, Mr. in this while this is a juror could have reasonable believed Offi- case, looking your firearms at crim- back Jefferson,” and, therefore, cer there is in- history, inal there are aggravated five jury’s sufficient evidence to sustain the burglary in your past. convictions verdict. very Those are serious matters. The a When conviction is attacked for you guilty found of this offense. evidence, insufficiency of the the evidence You are a career offender. The court light is in the to the finds that viewed most favorable guideline the low end of the prosecution not to determine whether ra this case. The court going you to sentence to 265 months tional trier of fact could have found each 522 beyond Consequently, the offense a lieved. we find that Bar
essential element of argument merely v. to challenge Hilliard United nett’s “is a reasonable doubt. (6th Cir.1998). States, credibility, 157 447 packaged [the F.3d as witness’s] judgment for This Court reverses a insuffi- the evidence insufficiency of claim.” Unit (6th if ciency “only judg- of the Talley, evidence 164 F.3d [the] ed States v. 996 Cir.1999). is not substantial and supported Thus, ment because “attacks on wit a competent upon evidence record as credibility simply challenges ness are Stone, v. F.2d whole.” United States quality government’s evidence (6th Cir.1984). 361, 363 “Circumstantial evidence,” sufficiency and to the alone a evidence is sufficient sustain Adamo, v. United States F.2d conviction such evidence need not re- (6th Cir.1984) (emphasis original), Bar every hypothesis except reasonable move challenge nett’s to his conviction on this guilt.” Spearman, that of v. United States ground fail. must Cir.1999). (6th 186 F.3d B. are
We convinced Barnett’s seeks Barnett also of his reversal conviction based on “substantial and prosecutor’s conviction based on the clos competent evidence.” Officer Jefferson trial, argument which, ing according testified trial that he saw Barnett Barnett, included misstatements of the law crouched outside the residence at 661 Shel Lane, consequently prosecutori amounted to holding object long black Allegations al of prosecutori misconduct. shotgun. looked like He further testified al questions misconduct contain mixed he object saw Barnett throw the law and fact that this Court reviews de ground began Barnett flee from Green, Furthermore, novo. residence. Officer Cir.2002). (6th In reviewing alle testified upon investigating Crowe misconduct, gations prosecutorial apprehended, residence after Barnett was two-step inquiry. Court conducts Unit she found black and chrome rifle in the Francis, ed States yard. front evidence is This sufficient evi *7 Cir.1999). First, we if the support to determine jury’s guilty dence the verdict. improper. they If statements were Id. Barnett that claims because Officer Jef following were we consider improper, the view, was, testimony ferson’s in his incon factors to if the determine comments were unreliable, government sistent and the did (1) flagrant enough to warrant reversal: present sufficient evidence to sustain prosecutor’s whether the remarks or con guilty disagree. the verdict. This We jury preju duct tended to mislead the or consistently Court has stated “[i]n (2) accused; dice whether the remarks sufficiency cases which we assess the extensive; (3) were or isolated whether the evidence, weigh we do not the evi accidentally deliberately remarks or were dence, credibility assess the wit made; (4) strength the overall of the nesses, or judgment substitute our for that evidence accused. against the Id. jury.” of the Wright, United States v. 16 Cir.1994) (6th 1429, end, F.3d 1440 (citing begin, analysis We our of Bar- Unit Evans, (6th prosecutorial ed States v. F.2d nett’s 883 501 misconduct claim Cir.1989)). prosecutor’s Barnett makes no clos- considering substantive whether argument ing argument improper. the evidence submitted to In was determin- insufficient; rather, jury was ing improper, he mere whether it was we “view the ly argues that cannot Jefferson be- conduct at issue within the context of the
523 v. Bever instructing trial as a whole.” United States them to disregard “anything (6th Cir.2004) ly, (citing prosecutor] 369 F.3d 543 [the said about conspiracy.” 1, 12, 105 Young, United States possible impropriety This cured of the (1985)). 84 L.Ed.2d When prosecutor’s use of the word “conspiracy.” issue, reviewing Monus, the conduct is also “[i]t See United States v. 128 F.3d whether, (6th Cir.1997). to consider and to 394 The subsequent state extent, prosecutor’s improper argu what ments, none of which used the word “con ment is invited defense counsel’s state spiracy,” were not improper. They simply Jacobs, ments.” responded to theory Barnett’s (6th Cir.2001) (citing United namely, that someone other than case— Hickey, States v. Barnett possession had of the gun. Bar Cir.1990)). points nett to no case suggesting law government’s legitimately statements — case, alleged In this prosecuto responding theory the defense’s during prosecutor’s rial misconduct involves the closing arguments improper. —were during “continued insistence rebuttal fact, this Court has held that rebuttal jury conspiracy.” instruct the on the law of similarly statements that respond to a de closing argument, counsel for the Un closing fendant’s argument prose- are not you tied said that “if with conspire States See, Jacobs, cutorial e.g., misconduct. home, ... someone else to invade or [a] at 508 'a (holding prosecutor did not you your partner grab either or decide to commit misconduct since defense counsel home, you rifle from the then both “opened the door” prosecution rebuttal under the law have exercised control over by arguing record); facts not Mon it.” The district court sustained Barnett’s us, 128 F.3d at (holding prose that a objection to “conspira the use of the word hypothetical cutor’s questions jury to the cy,” and instructed the disregard response argument defense were government’s arguments regarding proper). conspiracy ground on the that it was not charge. an element of the prosecutor pros While Barnett claims continued, essentially then saying the incorrect, legally ecutor’s statements were thing, using same but without word provide he fails to support proposi forbhis “conspiracy.” again Counsel for Barnett tion. It is well-established that actual or objected, in a although side bar he admit possession constructive a firearm is suf prosecutor ted that merely re give liability ficient to rise to under section sponding argument to defense counsel’s *8 See, DeJohn, 922(g). e.g., United States v. that someone other than Barnett could (6th Cir.2004) 533, 368 545 (quoting F.3d holding gun. have been the Upon hearing Schreane, 548, v. 331 that, the court allowed the to prosecution (6th Cir.2003)). Thus, 560 for the afore its argument using hypothetical make the reasons, mentioned we are convinced that quoted above. prosecutor’s argument the not closing does prosecutor find that the We did not prosecutorial constitute misconduct. engage in prosecutor misconduct. The only “conspiracy” mentioned once clos III. court, however, ing argument. The sus objection tained Barnett’s to the pending appeal use While this case was on Court, “conspiracy” expressly word and admon before this is Court statement, jury regarding ished the sued its decision in States v. Book United 524 (2000), opinions two and
er. The Court issued S.Ct. Booker, by Blakely one Justice Stevens 542 Washington, authored reiterated U.S.-, of the constitutional concerning the merits S.Ct. L.Ed.2d 403 challenge, (2004), the other authored Jus judge, and Booker because the trial necessary Breyer addressing the rem tice jury, rather than the determined the na- a edy for the Court found to be what previous ture of Barnett’s convictions. Ac- Brey In violation. Justice constitutional Barnett, cording government was expressly severed opinion, er’s the Court plead “every required the indictment 3553(b)(1), which excised 18 U.S.C. ... used fact to increase sen- [Barnett’s] a required sentencing impose had courts to maximum, statutory ... tence above the applicable Sentencing sentence within the not the as] whether or defendant’s [such subject departures range, Guidelines for prior convictions were crimes of vio- — Booker, at certain limited cases.. U.S. or [for] lence controlled substances of- -, un Consequently, at 765. S.Ct. fenses.” Sentencing are der Existing case law establishes that cases, advisory including now in all those Apprendi require does not nature or not a that do involve Sixth Amendment prior character of convictions to deter be holding, violation. at 769. so Id. jury. Apprendi, mined the Su expressly “remedial Court stated its preme expressly excepted Court the fact of Sentencing Act” must interpretation of prior requiring conviction from rule review.” applied be “to all cases direct fact issues of that increase a defendant’s Id. The Booker Court made it clear to the penalty jury. be submitted apply this remedial should scheme Court, at This to those whose sentences had defendants others, among rejected argument has imposed been of the Sixth violation Apprendi requires prior nature of Amendment, also to defendants but those jury, convictions to determined by who had been sentenced under the manda holding instead that the district court’s tory suffering a Sixth Guidelines without authority to determine existence Id. (noting Amendment at 765 violation. in prior enough convictions was broad that while Fanfan’s sentence did defendant regarding clude determinations the nature Amendment, par not violate the Sixth prior those example, convictions. For resentencing ties could seek under the new Becerra-Garcia, in United States v. advisory regime); see United States (3d Fed.Appx. Davis, 2002 WL at *3-5 Cir. *8 WL 2002) Jan.2, 2005) (unpublished Feb.11, opin Cir. (remanding resentencing ion), panel this Court that a held despite under Booker absence of Sixth violation). Apprendi’s did not violate Amendment Because this case holding by determining pending was review when Booker Sixth Amendment on direct decided, holdings prior Booker are whether the defendant’s conviction felony. applicable aggravated in the case bar. was for In Becer ra-Garcia, we cited a number of courts *9 A. conclusions, that have reached similar such Circuit, which, Eighth as the Barnett in United argues application first the Act, Campbell, 702, 270 Criminal 18 States 707-09 Armed Career (8th Cir.2001), 924(e), § Apprendi U.S.C. in this violated the held that does not case the principles require prior Sixth Amendment established nature of defendant’s Apprendi Jersey, felony New 530 U.S. offenses as “violent felonies” or drug plain “serious offenses” under the Armed er whether there was error that af in, proved that, Act to be rights Career Criminal fects substantial our jury. view, discretionary seriously affects the fairness, fundamental integrity, or public case, Barnett, present In the like the reputation judicial proceedings. John Campbell, defendant in claims that the fail- States, 461, 466, 117 son v. United 520 U.S. ure of the district court to submit to the (1997) S.Ct. 137 L.Ed.2d (citing question prior of the nature of his Olano, 725, 732, United States v. 507 U.S. convictions under the Armed Career Crim- (1993)). Apprendi. inal Act violated Given the establishing Apprendi case law does
not require prior the nature of convictions 1. by jury, reject be determined we We consider first whether there argument Barnett’s on this issue. More- was error under current law. United over, language sug- there is no in Booker (6th Rogers, States v. 118 F.3d 471-72 Court, gesting Supreme part that the as of Cir.1997). case, In the instant Barnett case, its in that adopted remedial scheme was pre-Booker sentenced under the man the exception Appren- intended alter datory Sentencing Guidelines. The dis allowing di district courts to consider the trict court sentenced Barnett to 265 fact prior and nature of convictions without imprisonment months of followed four jury. Thus, submitting those issues to the years release, supervised which fell reasons, for foregoing we hold that within the Guidelines of 235-292 there was no Sixth Amendment violation in months required 18 U.S.C. present ease. 3553(b)(1). sentencing procedure This time, now, was correct at the but because
B. 3553(b)(1) section has been excised and argument that given Barnett’s second is Booker, severed under the district court Supreme Court’s decision in Booker by treating erred the Guidelines as manda making Sentencing Guidelines adviso- tory Thus, when it sentenced Barnett. ry, this Court should vacate his sentence first for requirement finding plain error is resentencing and remand the case for “in present satisfied case.
light of fact that the district court judge if was the defendant as guidelines were mandatory.” For the The next issue is whether the er reasons, following agree. we “ context, “plain.” ‘[p]lain’ ror was or, parties at oral argu synonymous equivalently, conceded with ‘clear’ ” Olano, 733-34, challenge ment that Barnett did not his at ‘obvious.’ 507 U.S. ground sentence on this or other be S.Ct. 1770. The Court has ex Therefore, fore the court. pressly we re held that “where the law at the view plain clearly the district court’s decision for time of trial was con settled — ——, trary error. See at ... appeal U.S. law the time of (noting S.Ct. at 769 that whether a enough new is that an error be at the Johnson, sentencing hearing required depends appellate on time of consideration.” doctrines,” “ordinary prudential 1544; such as 520 accord Calloway, “whether issue was raised below and United States v. test”). Cir.1997). case,
whether it ‘plain-error’ present fails the In the error, sentenced, reviewing we must at the Barnett consid- time *10 526 Fulminante, 279, 499 U.S. mandatory ing Arizona v. were
Sentencing Guidelines 1246, now, advisory. 310, Fur- 111 S.Ct. not, they are (1991)). pre-Booker law has found thermore, controlling Supreme case Court Sentencing very in a limited consistently -held errors “structural and manda- id., cases,” were constitutional a defen such as where class of uncertainty occasioned after the tory even rights, certain fundamental dant is denied in Blake- decision Supreme Court’s by the trial, right public to a Waller including the Koch, See, v. 383 States ly. e.g., United 39, 2210, 81 467 104 S.Ct. Georgia, v. U.S. Cir.2004) (en banc), (6th over- F.3d 436 (1984), right self-repre L.Ed.2d 31 — -, Booker, at 125 U.S. ruled trial, Wiggins, v. at McKaskle sentation however, effectuated 769. S.Ct. at 944, 122 168, 104 79 L.Ed.2d S.Ct. 465 U.S. in law change and “obvious” “clear” counsel, v. (1984), right Gideon and the adviso- Sentencing Guidelines making the 792, 335, 9 Wainwright, 372 U.S. 83 S.Ct. law, in the we hold change ry. Given (1963). cases, such be L.Ed.2d 799 Barnett to be plain that it was error “structural,” the de the error was cause mandatory Guidelines under a sentenced required demonstrate fendant was advisory. regime that has now become or, words, in other prejudiced, that he was error affected the outcome of that the proceedings. Third, defendant is re error that the quired to demonstrate Second, deci Supreme Court’s Fed. rights.” substantial “affect[ed] that in quite “made clear sion Olano 734, Olano, 52(b); at 507 U.S. R.Crim.P. prejudice of presumption some situations Supreme Court 113 1770. As S.Ct. if cannot appropriate” the defendant Cotton, States reiterated United showing prejudice. of specific make a 625, 632, 152 L.Ed.2d 122 S.Ct. U.S. 720, 726 Manning Huffman, 269 F.3d (2002) Olano, at 507 U.S. (quoting (6th Cir.2001) (holding presumption that a 1770) added), (emphasis 113 S.Ct. in a prejudice habeas rights” gener phrase “affect substantial juror participated an alternate case where “prejudicial,” which ally synonymous with deliberations, even absent evidence error ‘must have “usually that the means jury’s affected the delibera that the error of the district court affected the outcome verdict): States v. tions and its United ” However, Supreme proceedings.’ Cir.1994) Segines, noted, rec and this Circuit has Court has has Supreme Court (noting “[t]he requirement to the ognized, exceptions two establishing ... a blanket short stopped the- demonstrate-that the defendant of persuasion that shifts the burden rule of the district error “affected the outcome in all defendant cases.... [There First, there is a class proceedings.” pre ‘errors should be be] also errors, which, the of so-called “structural” if cannot the defendant prejudicial sumed instructed, “can Court has ”) showing prejudice.’ specific make a on the of their effect regardless corrected Olano, at (quoting Olano, 507 U.S. outcome.” 1770). “A error is ‘de S.Ct. 1770. ‘structural’ prejudice, and presumed Courts within which affecting fect the framework prong third thus found the simply an have proceeds, trial rather than ” satisfied, in cases where the error review John process error in the- trial itself.’ excep- made it son, inherent nature of error (quot- 520 U.S. *11 tionally to dem by difficult for defendant sitting Fifth Circuit en banc in 344, onstrate that the outcome of the lower Reyna, United States v. 358 F.3d 351- — (5th proceeding Cir.), denied, would have been differ U.S.-, cert. had error not occurred. in 2390, (2004), ent For stance, Adams, in United States v. where the court that pre held a, (3d Cir.2001), the Third Cir that sume ..defendant suffered prejudice plain cuit found error where the defendant from a court’s failure to allow him to allo- given opportunity was not to exercise cute, despite the inability defendant’s right considering his of allocution. demonstrate how the error affected the that whether defendant could show imposed by sentence the district court. prejudicial, court’s error was the court ex context, In addition to the allocution pressly difficulty establishing noted the in courts have been willing presume preju that the allocution error affected the out dice, implicitly explicitly, plain both in proceedings. come of the that, error review of types other of errors (“In prove id. order to that the error See nature, keep party their from being actually ‘affected the outcome of the dis that, able to demonstrate in the absence of proceedings,’ trict court [the defendant] - error, the outcome of his trial or point would have to statements that he sentence would have been different. For sentencing, would have made at and some Plaza-Garcia, example, in United States v. how show that these statements would (1st Cir.1990), 914 F.2d 347-48 then- changed imposed the sentence Judge Breyer Stephen Chief vacated a Court.”). District Because of “the nature erroneously sentence fell within both right difficulty proving of the and the applied and ranges correct Guideline un violation,” prejudice from its id. plain der the error doctrine because the presume court concluded that it would “may sentence well have been influenced prejudice require rather than the defen by the sentencing [erroneous] recommen “enormously dant to make the difficult” dation.” Syme, See also United States v. showing that the error affected the district (3d Cir.2002) 131, 153-55 276 F.3d (holding decision, (quoting court’s id. though a constructive amend even Pagan, United States v. Alba 33 F.3d ment to an indictment does not constitute (1st Cir.1994)) (internal quotation error, a “structural” it nevertheless must omitted). marks This reached a Court “presumed prejudicial” light similar result United States Riascos- difficulty proving prejudice resulting Suarez, Cir.1996), 73 F.3d amendments). from constructive resentencing where we remanded for be above, As established er cause the defendant was not afforded the ror in the instant case is the sentenc opportunity to alloeute and the error ing Sentencing court failed to treat “could have had an effect on his sentence.” advisory determining Guidelines as Bar Cole, See also United States v. (4th Cir.1994) nett’s sentence. The record shows (implicitly adopting pre imposed- the district court a sentence sumption prejudice error con assumption which, again, based on the text where a defendant was denied his — but, correct, and, thus, at the time incorrect right “may to alloeute have been light of Booker—that the Guidelines were persuade able to the court” that a lower continued, mandatory. are convinced appropriate). sentence was We that.this validity category “presumed of Olano’s case which to presume prejudicial” recently prejudice errors was reaffirmed under the Court’s deci- *12 difference between the First, This fundamental if the district sion Olano. frame- sentencing pre- post-Booker and by the not bound case had been this deep concern with illustrates our works Guidelines, Bar- in the range prescribed merely on a middle-of speculating, based a lower sentence. may have received nett imposed under the-range sentence the district court It uncontested framework, that the mandatory Guidelines discretion, under the had the would have have sentenced court would not impose to regime, advisory Guidelines new to a lower sentence under Barnett impris- months of as low as 180 a sentence That the dis- advisory regime. Guidelines onment, statutory provided minimum in the chose to sentence Barnett trict court Act, 18 by the Armed Career Criminal mandatory range does middle of 924(e), significantly low- § which is U.S.C. necessarily that the district' suggest under months he received er than the 265 impris- that 265 months of would now feel mandatory Guide- application sentence for Barnett. proper onment is the lines. court would suggest it that the Nor does Barnett to a lower not have sentenced Second, exceedingly difficult it would discretion, it if it had the which sentence Barnett, defendant, to show such as for a now, in an apply the Guidelines does have been differ- that his sentence would advisory fashion. him court had sentenced ent if the district facing extraordinary difficulty de advisory, rather than the man- under the showing as Barnett fendants such This is datory, framework. Guidelines mandatory, rather than adviso the use of the fundamental part true in because affected the outcome of ry, Guidelines sentencing process alteration sentencing proceedings is exacerbat their hold- by Booker’s remedial brought about by fact that to make such a show ed frame- post-Booker the new ing. Under presumably ing, the defendants work, empowered court is with that the district court have to demonstrate to consider the factors greater discretion intimated that it felt constrained somehow 3553(a) in deter- provided 18 U.S.C. or that it would have the Guidelines This discretion mining proper sentence. the defendant to preferred sentence at the time Barnett was present was not view, This, in our is too lower sentence. mandatory Guide- sentenced under burden, exacting given the fact recently ob- Circuit lines. As Second others, Court, repeatedly had along with served, what con- “impossible to tell pr instructed courts e-Booker might sides siderations counsel both applicable within the impose sentences sentencing judge’s brought to the range, limited mandatory Guidelines with they they known that could attention had consistently upheld exceptions, and had impose a non-Guidelines urge judge constitutionality of the Guidelines Crosby, No. sentence.” United States nature, even after the mandatory their (2d 03-1675, at Cir. Feb. slip op. 28-29 See, Blakely. Supreme Court’s decision 2005). frame- post-Booker Under the new Koch, (noting e.g., 383 F.3d at work, present able to counsel are now consistently has turned back “our Circuit aggravating mitigating circumstances challenges to Guideline Sixth Amendment pr “that at the time e-Booker [of existed resulting sen long enhancements so for con- sentencing] but were not available congressionally-pre- below the tence falls maximum”), mandatory statutory Guidelines overruled sideration under the scribed , — at-, regime.” Id. at 35. Booker substantially This well-established case law dant to lower sentence under an advisory or undermined need incentive for sen- regime. Crosby, slip op. See their tencing pr courts e-Booker note (noting guess that “an educated as to *13 objections sentencing and in reservations likely the outcome of a remand ... might then-mandatory the defendants under wrong, be absent a dear indication at the improper It be for this Guidelines. would original sentencing supporting the infer- require now to defendants Court such ence that the same sentence would have Barnett, type to of evidence— produce imposed post-Booker/Fan- been under the sentencing that courts had no reason to added). regime”) (emphasis This, fan provide pr under our e-Booker case law—in however, is not one of those cases. While order to their establish substantial “concrete,” the dissent claims that there is rights have been affected. “affirmative,” and “ample” evidence indi- noted, recently
As the Fourth Circuit in cating that the district court would not sentencing mandatory under the Guide- give Barnett a lower sentence on remand lines, “the district court was never called post framework, under the -Booker the in upon impose to a sentence the exercise that' evidence the dissent cites for this simply of its discretion.... We do proposition is the district court’s middle-of- have know how the district would the-range' imposed sentence under sentenced had it op- [the defendant] been mandatory This, regime. Guidelines in erating regime under the established view, our is pre- insufficient rebut the Booker,” Hughes, sumption that prejudiced by Barnett was n. at WL imposition of a sentence under the 2005). n.*5 Cir. Jan. Instead of mandatory Guidelines. speculating as to the district court’s inten- summary, because Barnett has dem- world, pr trying
tions e-Booker onstrated he was sentenced under the apply predict those intentions to Sentencing they Guidelines as if- were post- same court’s sentence under scheme, mandatory, advisory, than Booker we are rather and be- convinced prudent most course of action in this case cause he has shown that the district court presume given is to prejudice might the distinct have exercised discretion im- its possibility that the district court pose a lower sentence had known that imposed a have lower sentence under the advisory, were we hold that post new -Booker framework and the oner- rights Barnett’s substantial have been af- attempting ous burden he would face in fected.
establish that the
court would
imposed
such sentence.
This is not to discount the possibility,
analysis
final
step
“The
error
however,
other cases the evidence
to determine whether this case warrants
in the record will
sufficient to
rebut
Rogers,
the exercise of our discretion.”
presumption
prejudice.
ap-
While “an
ror.”), grounds, on other overruled United Endeavoring to avoid both these ineffi- Ceballos, 302 F.3d 690-91 States ciencies, plain-error rule limits errors Cir.2002). that result in remand to those that involve change substantial in the law Given the rights that a showing substantial depart after we see no reason to prejudiced. has defendant been As precedents from these here. stated, plain- has “The Seventh Circuit standard,
Second, light applies of error which when a dis- we consider this case plain given of trict court has not been the first underlying purposes one of the mistakes, economy judicial opportunity alleged of to correct error doctrine: func- summary, unnecessarily among proper strikes a balance resources. analysis tioning adversary system, efficiency plain restrictive error will result of managing litigation, and the demands substantial additional work for this Wilson, justice.” 237 court and will save the district courts al- of (7th Cir.2001) circumstances, (emphasis the. that to remand denied, added), empty formality 122 be “an judi- cert. 534 U.S. and waste of resources”). (2001). cial posture In the that we S.Ct. after
now find ourselves above, Notably, in the appel cases cited Book decision United States v. Court’s remand, late courts declined because to er, -, 543 U.S. retry expend great case would be to (2005), L.Ed.2d 621 I believe it more effi contrast, amount of By resources. where cient to remand this case to issue, a re-sentencing is at the costs are Otherwise, re-sentencing. we court for See, far less. e.g., Wright, Charles A. adopt a rule that results an inordinate Federal Practice and Procedure resources, expenditure appellate of (2004) (“Some 511-12 have suggested that yet court little. saves the district below, errors in sentencing, unraised should be reviewed with less deferential anal prong The fourth error re-sentencing standard as the costs of are ysis directs attention to whether unraised retrial.”). than lower the costs of In this fairness, “seriously integ errors affect the vein, we note the Second Circuit case rity, public reputation judicial pro or (2d Sofsky, United States v. 287 F.3d ceedings,” gives the court discretion in Cir.2002). Sofsky, the Second Circuit determining to remand a case to whether that, remanding stated because would not Among trial court. the concerns that but, rather, precipitate a trial new a re- account, appellate courts take into sentencing, appears “it that in the sentenc judicial economy.2 is a concern for least ing context there are circumstances that Indeed, many courts decline to remand permit rigorous us to relax the otherwise expend where a new trial would an unnec standards of error review to correct See, judicial essary amount of resources. sentencing errors.” Id. at 125. Cedelle, e.g., United States v. hundreds, Having presided over if not (4th Cir.1996) (under the circum thousands, sentencings, I believe stances, judicial expend “to resources *17 post-B.ooker re-sentencing time devoted to necessary for a retrial more det would be 1940s, would be small. Since the district fairness, integrity, rimental to the monthly judges have submitted re public reputation judicial proceedings of ports generally they detail the time than permitting [Appellants’] convictions functions, on expend various the JS- Ross, stand”); report. reports These for the Northern (7th Cir.1996) (finding the first three of District Ohio indicate that the amount of plain factors of the error but test met spent sentencing time on before Booker determining that “it would an unneces be averaged than 45 less minutes.3 Sentenc sary judicial retry waste of resources to ing significantly on remand would less. be hand); this case” based on the error at Izaguirre-Losoya, resentencing, sentencing United States v. At the court is (5th Cir.2000) (finding, already pre-sentence under familiar with the re- judicial using 2. We resources when is one-half hour. consider crement Even applying prong plain increment, the fourth of the error minimum time the three month analysis test. This does not affect the third January period between November 2004 prong, which concerns whether the error "af- judges Northern District of Ohio sen- rights” fects the substantial of the defendant. averaged less than tenced defendants per sentencing hearing. 45 minutes report may 3. The JS-10 overstate the time sentencing. used for The minimum time in- in sen- has shown that error opportunities pres- Barnett earlier port. Given calcula- guideline I therefore re- disputed tencing prejudicial. on was ent evidence reopen tions, be no need to there would spectfully part. dissent on those issues. The hearing the case agree I with the court’s conclusion simply allow re-sentencing hearing would pre-Booker the district court’s use proper stan- apply trial court to plainly erroneous sentencing rubric dard, only input limited from typically with law, I do not believe light present of but the defendant. prejudiced the error Barnett has shown contrast, spent by time each court First, matter, as a factual sentencing. his analyze panel required to appeals of I record indicates the district believe the error, plain would be multi- application of fair and would court felt the sentence was expen- of this ples greater. And result give post- the same sentence therefore judicial be that a of resources would diture Second, law, I Booker. as matter using sentenced defendant was standard by concluding that believe the court errs clearly wrong. that was si- we should reverse when the record is suggest I do not errors prejudice. lent as to subject always should to less rigorous suggest review. I do that in the I ourselves,
situation which we here find
judicial
to consider
re-
—
In United States v.
Here,
lays
sources.
as the Court
out
its
-,
opinion,
prongs
the first three
(2005),
Court found the Sen-
Further,
“fairness,
error test are met.
tencing Guidelines unconstitutional be-
reputation
judicial pro-
integrity, and
judicial
they permitted
fact-finding
cause
ceedings”
very
are
much at stake —defen-
beyond
a sentence
author-
increase
appeal
dants with active
were
cases
conviction,
by
in violation of
ized
wrong
sentenced under the
rules.
produced
Amendment. Booker
Sixth
Guessing
judge
at what
vote,
majority opinions,
by
two
both
5-4
greater
done had she
dis
known
Ginsberg joining both
with
Justice
pub
cretion
afforded Booker affects
Stevens,
first,
opinions.
Justice
judicial
lic reputation
proceedings.
Id.
found the Guidelines unconstitutional.
attempt
predict
Rather
than
what a
second, by
Breyer,
at 745-56. The
Justice
done,
district court would have
we should
remedy.
Id. at 756-70. The
provides the
path
follow the more efficient
should
—we
*18
solution was to strike 18 U.S.C.
Court’s
remand this matter to the district court.
3553(b)(1),
provision making
§
which is the
v.
reiterated:
As Williams
mandatory.
Id. at 756-57.
Guidelines
appellate
“it is not the role of an
court to
The Court left intact the remainder
judgment
substitute its
for that of the
role,
advisory
instructing
in
sentencing
appropriateness
court
toas
by a
they
must be consulted
sentenc-
particular
of a
sentence.” 503 U.S.
binding.
Ibid.
ing
longer
court but are no
(1992)
205, 112
S.Ct.
Although
concur
other
(2005).
738, 769,
standard error review porting Barnett’s claim of prejudice does Moreover, assuming jurors even that the not mean it categorically is “extraordinari- consequences were confused over ly difficult” for defendant’s to establish deadlock, petitioner cannot show the prejudice pre-Booker sentencing. In necessarily confusion worked to det- his fact, we often had evidence on the just likely riment. It is that as record when district courts are dissatisfied jurors, a loath to recommend lesser sen- with the required sentence the Guidelines tence, compromised would have on a give. them to Sentencing courts are re- of life on a imprisonment sentence quired by to give open law reasons in death sentence. Where effect of they the sentence select whenever the uncertain, alleged error is so a defen- range greater than months. shoiving dant cannot meet his burden of 3553(c). U.S.C. And even when this rule actually that the error his sub- affected apply, typically does not district courts Romano, rights. stantial we consid- explain their chosen sentence. We namely, a argument, ered similar possible prejudice also infer when a dis- jurors disregarded judge’s had a trial trict court sentences at the bottom of the given weight instructions and undue range. supra See n. 1. It is no more certain In rejecting evidence. that ar- prejudice difficult to establish here than that, gument, assuming we noted even run of involving plain vast cases error jury disregarded the trial review. instructions, judge’s equally seems “[i]t
plausible expand could have Nor did Booker the factors a evidence jurors made the more to impose inclined district court could consider when select- sentence, a death or it could have made ing suggests sentence. The court Any specu- them less inclined to do so.” present aggravating now counsel could lation on the effect of a lesser sentence mitigating circumstances were “not recommendation, like the evidence available for consideration under the man- Romano, would have had such an inde- datory regime,” Op. at 527-28 terminate effect the outcome of the removed), (quotations but the court does proceeding that we cannot conclude that not indicate what those additional circum- any alleged error in the District Court’s might argument ignores stances be. This petitioner’s instructions affected sub- a fundamental feature of the Guidelines: rights. stantial they present sentencing court with 394-95, from range, which must select sen- Id. at 2090. The Elev nearly enth tence. this case the Circuit has determined that Jones already controlling pre- years error five months. Counsel review —57 every every Booker had opportunity sentences. United States v. Rodri reason and 1291, 1306, guez, present any mitigating circumstance that WL *21 (4th Jan.24, 147059, at *5 n. 6 Cir. Barnett from WL have saved might possibly 2005) remanding based (stating that it is Any argu prison. years additional five Amendment only on error due to a Sixth -Booker post raised might be ments that does noting'that case “[t]his violation dangerousness, future culpability, about a of whether de- present question not works, family obligations, offsetting good a sen- prejudice because fendant suffers circumstance were mitigating other or e-Booker, guidelines court fails to treat argu tencing and these game pr fair also sentence”), as-advisory determining regularly have been mitigation ments relies, sentencing which the court upon e-Booker pr counsels in by defense invoked judicial fact- case‘was not based sentencing proceedings. (6th only factors that determined Riascos-Suarez, finding. The 627-28 73 F.3d jury Cir.1996) range were the Barnett’s. Guideline (finding error when reversible felony prior convic- conviction itself and opportu offered the was not the defendant Booker, Thus, unlike the determina- tions. at sentenc nity give mitigating evidence not a constitutional range tion of the was placed any never ing). The Guidelines stated, it correctly to violation. As the ability of the district court limits on the that the Sixth Amendment factors, no rea is well settled so there is consider these prior convictions be may require does not the district court to remand so son jury. (citing at 524-25 by Op. found additional circumstances.2 consider Campbell, States v. United presumption importantly, Most — Booker, Cir.2001)); accord 707-09 have concrete here we irrelevant because at-, (“Any at 756 fact record that evidence in the conviction) (other which is prior than a Barnett a give no desire to court had exceeding a sentence necessary support court, The district lower sentence. maximum authorized the facts es- factors, giv- could have of traditional light guilty or a plea tablished' if it prison months less en Barnett 30 by the defendant verdict must be admitted warranted. a sentence had believed such jury beyond a reasonable proved or n as to what speculate- not We need added). doubt.”) highly (emphasis This is if it had the have done district court would a sentence significant, because when sentence, give a more lenient discretion to judicial fact-finding is based on —as discretion. already had such because Hughes may the sentence be Booker and — Assuming, arguendo, presumption from Amend- said to have resulted Sixth by the record. rebutted prejudice, it is error. ment Ill IV this case
Finally, significant it is in the efficiency argument made Amendment viola not involve a Sixth does Gwin, while intri- itself, by Judge concurrence and United tion. Booker Unlike First, 374, 380, guing, suffers from two defects. Hughes, States mitigating upon potential circumstances that distinguishes cases the allocution This Here, however, Op. at 525-26. The which the court relies. the sentence. have affected courts have held court noted that circuit some every present every counsel had reason prejudice presumed in error can be possible mitigating circumstance when defendant not offered review discretion, expanded while it has mitigating opportunity present circum- expanded possible con- has cases, true that stances. In such it is indeed determining a sentence. siderations when presented with the district court was never *22 showing preju- with all lowering having the threshold for the facts and heard the “efficiency parties fully, considerations” is dice based court chose not to novel and has no basis by up reduce the sentence to 30 months. I respect instructions with to reme- Court’s see not one iota of suggesting evidence — at-, dy. 125 S.Ct. at that the court would persuaded be to re- (cases on direct review should re- duce the sentence simply because it had “ordinary discretion, using prudential viewed doc- more when it left unused the test,” applying “plain-error trines” and already discretion it possessed. These every appeal “not will lead to a new facts can quickly easily be ascertained Judge sentencing hearing”). Gwin seems a reviewing court. There be other judicial arguing economy to be war- judicial economy cases where tips the pre-Booker rants a remand of all blanket scales in favor of remand rather than fur- sentences on direct review. If the analysis Court’s ther as when the defendant —such followed, directions are to be we cannot sentenced the bottom of the Guideline simply that the prejudice inquiry conclude this is not such a case. —but judicial econo- is waived the interests I efficiency point also note that the inis my. argument tension with the court’s that re- Second, particular a remand in this case mand will allow the district court to con- not efficient. be resource While the sider additional mitigating circumstances. likely district court is to be somewhat fa- Op. at If the resentencing 526-28. is to be already, miliar with the case after more efficient, highly permitting only “limited year necessary than will be to review input from the relying defendant” and resentencing. the case before We must upon already presented, evidence then parties also consider the need for the to there nothing is little or new for the dis- arguments participate submit and to in the trict court to consider. ifBut there are resentencing, however streamlined. Final- circumstances, mitigating additional ly, after there will be the inevit- than resentencing will be more cum- appeal able to this court. Both district procedure bersome than the lean envi- and circuit expend courts must non-trivial in support Judge sioned Gwin’s efficien- cases, easy effort to resolve even the cy argument. It is difficult to see how the outcome is in doubt. where never And resentencing by the district court can be forget energy parties we must not highly give both streamlined and full con- expend arguments must to make their be- mitigating sideration to additional circum- fore us. stances. necessarily I While would dismiss
efficiency altogether, considerations I con- judicial economy
clude that in this case by affirming.
best served However
streamlined, a proceeding clearly remand (and judicial
expends some resources parties).
resources of If we are suffi-
ciently certain that the district court would sentence, efficiency
not alter its than no Here,
purpose is served remand. I quite
think we can be certain the district
court would not alter its sentence. Armed