FILED
United States Court of Appeals
Tenth Circuit
September 6, 2007
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-1510
LA W REN CE SEA N CO N LA N ,
Defendant-Appellant.
A ppeal from the U nited States D istrict C ourt
for the D istrict of C olorado
(D .C . N o. 06-C R -00066-W D M )
Submitted on the Briefs:
Raymond P. M oore, Federal Public Defender, and Lynn C. Hartfield, Assistant
Federal Public D efender, Denver, Colorado, on the briefs for D efendant-
Appellant.
Troy A. Eid, United States Attorney, and M artha A. Paluch, Assistant United
States Attorney, Denver, Colorado, on the brief for Plaintiff-Appellee.
Before H E N R Y , SE Y M O U R , and G O R SU C H , Circuit Judges.
SE Y M O U R , Circuit Judge.
Lawrence Sean Conlan appeals his sentence of fifteen months for violating
26 U.S.C. §7206(1), the filing of a false income tax return. M r. Conlan was
charged in a seven count indictment for filing false tax returns for the years 1998
through 2001. The indictment was part of a multi-state prosecution of individuals
who were connected with an organization that marketed and sold fraudulent tax
shelter programs, or who participated in the tax shelters as M r. Conlan did. M r.
Conlan pled guilty to one count of the indictment, admitting that he filed a false
income tax return for the year 2000. The district court sentenced him at the
bottom of the applicable U nited States Sentencing Guideline range. On appeal,
M r. Conlan claims his sentence is both procedurally and substantively
unreasonable. Exercising jurisdiction pursuant to 28 U .S.C. § 1291, we reverse
the district court’s sentencing decision and remand for resentencing.
I
At sentencing, the U nited States Probation Office recommended the court
impose a sentence below the advisory guideline range of fifteen to twenty-one
months and instead impose a term of three-years probation with the first six
months to be served in home detention. The rationale for the probation officer’s
recommended variance was that M r. Conlan’s advisory guideline range was
disproportionately long when compared to other defendants involved in the
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scheme who had greater responsibility and caused greater monetary loss to the
government.
The United States “vehemently” objected to the variance, rec., vol. IV, at
21, and repeatedly argued to the district court that M r. Conlan had the burden of
overcoming a presumption that the advisory guideline range was reasonable. See
id. at 35 (“Under the 10th Circuit case law that’s emerging, there is a presumption
that the sentence under the guidelines is a reasonable one, and therefore there has
to be something with reliable evidence that would overcome the presumption.); id.
at 36 (“The 10th Circuit requires a good reason. That’s what the case law says. It
requires you to presume that the guideline range is reasonable, is a reasonable
sentence, unless you find something is w rong with those guidelines from reliable
evidence.”); id. at 38 (The guideline sentence “is a sentence that is presumptively
reasonable under the 10th Circuit case law .”).
In pronouncing its sentence, the district court began by saying,
As we know, the law that controls this Court is now governed by the
factors set forth in Title 18 U.S.C. 3553(a). There are several[,]
including the guideline recommendations which I do consider. They
are the product of extensive study and experience, and the 10th
Circuit has told us that those conclusions are presumptively
reasonable.
Id. at 47. The court recognized this to be a “difficult case.” Id. W hile the court
said it “certainly respect[ed] [the probation office’s] judgment and
recommendations and what [counsel] argued, . . . it [w as] not enough . . . to
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overcome the presumption of reasonableness of the guidelines.” Id. at 50. In
completing its pronouncement, the court added,
And I will note for the record as w ell that I agree with
Government counsel that the guidelines are pretty clear that the
intent was to increase custodial sentences with their adoption from
what had been the practice on a preguideline basis. So it is my
conclusion that there is no reason for me not to sentence the
defendant within the presumptive range of reasonableness, and I will
do so.
Id. M r. C onlan began his fifteen-month sentence on January 15, 2007. See rec.,
vol. I, doc. 44. at 2.
II
W hen reviewing a sentencing challenge, we evaluate sentences imposed by
the district court for reasonableness. United States v. Booker, 543 U.S. 220
(2005); United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006).
“Reasonableness has both substantial and procedural components.” United States
v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). Procedural reasonableness involves
using the proper method to calculate the sentence. Id. Substantive
reasonableness involves w hether the length of the sentence is reasonable given all
the circumstances of the case in light of the factors set forth in 18 U.S.C. §
3553(a). See Kristl, 437 F.3d at 1053.
“A sentence cannot, therefore, be considered reasonable if the manner in
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which it was determined was unreasonable.” Id. at 1055. In United States v.
Begay, 470 F.3d 964, 977 (10th Cir. 2006), we held it was error for the district
court to apply the appellate presumption of reasonableness to the advisory
guidelines when sentencing. This decision was recently validated, although not
specifically mentioned, in Rita v. United States, 127 S. Ct. 2456 (2007). Rita
calls on district courts to “subject[] the defendant’s sentence to . . . thorough
adversarial testing,” including consideration of arguments that the guidelines
sentence “fails properly to reflect §3553(a) considerations.” The Court
emphasized that “[i]n determining the merits of these arguments, the sentencing
court does not enjoy the benefit of a legal presumption that the Guidelines
sentence should apply.” Id. at 2458. Rita thus makes clear that the presumption
of reasonableness applies only at the appellate level. Id. at 2465 (“We repeat that
the presumption before us is an appellate court presumption.”). See also United
States v. Wilms, ___ F.3d ___, No. 06-1896, 2007 WL 2077367 (6th Cir. July 23,
2007) (reversing and remanding defendant’s sentence due to imposition of a
presumption of reasonableness at district court level in contravention to Rita).
[A] district court’s job is not to impose a reasonable sentence.
Rather, a district court’s mandate is to impose a sentence sufficient,
but not greater than necessary, to comply with the purposes of
section 3553(a)(2). Reasonableness is the appellate standard of
review in judging whether a district court has accomplished its task.
Id. at ___, 2007 WL 20777367 at *3 (quotation marks, emphasis, and citation
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omitted).
In light of the recent decision in Rita and our decision in Begay, the
government rightly concedes the district court erred in affording a presumption of
reasonableness to the recommended advisory guideline sentence. Aple. Br. at 32.
B ut it suggests M r. C onlan should be held to a plain error standard when we
review the court’s error. To the contrary, we are persuaded M r. Conlan preserved
his argument that the guidelines are presumptively reasonable only at the
appellate level when he asserted at sentencing,
W hen you look at the 10th Circuit cases, we are talking about
the standard of review on appeal, and that is what [sic] the court is
saying at the 10th Circuit level and . . . this is going to be resolved at
some point again at the Supreme Court because there are [sic]
differences of opinion on the various circuits.
Rec., vol. IV at 43 (emphasis added). W e therefore review the district court’s
error for harmlessness.
To establish harmless error, the United States has the burden to show by a
preponderance of the evidence that the district court’s error did not affect the
court’s selection of the sentence imposed. United States v. M ontgomery, 439 F.3d
1260, 1263 (10th Cir. 2006). Recently in United States v. Arrevalo-Olvera, ___
F.3d ___, No. 06-2291, 2007 W L 2181514 (10th Cir. July 31, 2007), we held a
Begay error was harmless w here the district court exercised its discretion to
impose a sentence above the low-end of the applicable guideline range. Id. at
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___, *2. The government contends our decision in Arrevalo-Olvera should
persuade us to find harmless error here as well. W e disagree. Unlike M r.
Arrevalo-O lvera, M r. Conlan w as sentenced at the very bottom of his advisory
guideline range, a sign we have taken in the past to indicate that the court may
have done something differently had it not felt mistakenly bound by the
guidelines. See, e.g., Begay, 470 F.3d at 976-77; United States v. Nickl, 427 F.3d
1286, 1301 (10th Cir. 2005); United States v. Labastida-Segura, 396 F.3d 1140,
1143 (10th Cir. 2005). The district court’s erroneous application of the
presumption of reasonableness – understandable given the government’s
argument and the pre-Rita confusion in this area – blinded it to the option of a
variance. Here, the probation officer recommended a term of probation rather
than the advisory guideline sentence and the district court clearly termed it a
“difficult case.” Rec. vol. IV, at 47.
It is also true the district court expressed concern regarding M r. Conlan’s
hesitancy to take responsibility for his actions and his overall dishonesty. See,
e.g., id. at 47, 49. Taking into account those concerns or other appropriate §
3553(a) factors, the court may determine again that the guideline sentence is
reasonable. But given that the reasonableness standard is and was only an
appellate standard, what the district court will do upon resentencing absent the
illegal presumption “places us in the zone of speculation and conjecture.”
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Labastida-Segura, 396 F.3d at 1143. Accordingly, we R EV ER SE and R E M A N D
for resentencing. *
*
Because we are reversing M r. Conlan’s sentence based on the procedural
error, w e do not address his substantive challenges to his sentence.
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