United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided April 8, 2005
No. 03-3113
UNITED STATES OF AMERICA,
APPELLEE
v.
TERENCE COLES,
APPELLANT
Appeal from the United States District Court
(USDC) for the District of Columbia
(No. 02cr00204-01)
Jenifer Wicks and Bernard S. Grimm were on the brief for
appellant.
Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Roy
W. McLeese, III, Anthony M. Alexis, and SuzAnne C. Nyland,
Assistant U.S. Attorneys, were on the brief for appellee.
Before: EDWARDS, SENTELLE, and GARLAND, Circuit
Judges.
Opinion for the Court filed Per Curiam.
2
Per Curiam: This case raises an important issue left open
by the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), concerning the application of the plain-error
doctrine to appeals from sentences rendered under the Federal
Sentencing Guidelines before the Supreme Court ruled that they
are advisory rather than mandatory. In addressing this issue, we
align ourselves generally with the decisions of the Second
Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005),
and the Seventh Circuit in United States v. Paladino, No. 03-
2296, 2005 WL 435430 (7th Cir. Feb. 25, 2005), reh’g en banc
denied, id. (7th Cir. Feb. 25, 2005), and most particularly with
the approach adopted by the Seventh Circuit. Because the
record is insufficient for us to determine with confidence
whether the defendant suffered prejudice from the Booker error
in this case, we hereby remand the record to the District Court
so that it may determine whether it would have imposed a
different sentence, materially more favorable to the defendant,
if sentencing had taken place under the post-Booker sentencing
regime.
I.
Terence Coles was convicted of conspiracy, two counts of
bribery, and two counts of fraud, in violation of federal and
District of Columbia law, for his participation in a scheme to
obtain grant money fraudulently from the District of Columbia’s
Escheated Estates Fund while he was the Special Assistant to the
Secretary of the District of Columbia. See 18 U.S.C. §
201(b)(2) (2000) (bribery); D.C. CODE ANN. §§ 22-1805a
(2001) (conspiracy); id. § 22-3221(a) (fraud in the first degree).
The District Court sentenced Coles on the bribery counts
pursuant to the Sentencing Guidelines, under which Coles was
assigned a base offense level of 10 and a criminal history
category of I. See UNITED STATES SENTENCING COMMISSION,
GUIDELINES MANUAL §§ 2C1.1(a), 4A1.1 (2001). The District
Court added two levels to the base offense level, because “the
3
offense involved more than one bribe,” id. § 2C1.1(b)(1), and it
added eight additional levels, because “the offense involved a
payment for the purpose of influencing . . . any official holding
a high-level decision-making or sensitive position,” id. §
2C1.1(b)(2)(B). These adjustments raised Coles’ offense level
from 10 to 20, increasing the applicable sentencing range from
6-to-12 months to 33-to-41 months. Id. ch. 5, pt. A (sentencing
table).
The District Court sentenced Coles to 36 months’
imprisonment for each of the federal bribery counts, to run
concurrently. The trial court also imposed 36-month prison
sentences for each of the three D.C. Code convictions for
conspiracy and fraud, all to run concurrently with the bribery
sentences.
Coles appealed to this court, challenging both his conviction
and his sentence. We affirmed Coles’ conviction, but held the
challenge to his sentence in abeyance pending the Supreme
Court’s decision in Booker. See United States v. Coles, No. 03-
3113, 2004 WL 2862212 (D.C. Cir. Dec. 13, 2004) (per curiam).
Following the Court’s decision in Booker, the parties submitted
supplemental briefs addressing the impact of that decision on the
sentence in this case. We now address Coles’ challenge to his
sentence.
II.
The Court’s decision in Booker is cogently summarized in
Crosby:
Since November 1, 1987, sentences in federal criminal
cases have been determined pursuant to the Sentencing
Reform Act of 1984 (“SRA”), Pub. L. 98- 473, Title II, §§
211-238, 98 Stat. 1987 (1984), and the Guidelines issued by
the United States Sentencing Commission, see U.S.S.G. §§
1A1.1-8F1.1. . . .
4
....
The Supreme Court’s decision in Booker/Fanfan
significantly altered the sentencing regime that has existed
[under] the Guidelines . . . . The Court’s two-part decision
consists of an opinion by Justice Stevens adjudicating the
merits of the Sixth Amendment issue (“Substantive
Opinion”), and an opinion by Justice Breyer setting forth
the remedy (“Remedy Opinion”). . . .
. . . In the Substantive Opinion, the Court ruled that
“[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to
a jury beyond a reasonable doubt.” Substantive Opinion,
[125 S. Ct. at 756]. This ruling, the Court explained, was
required for “enforcement of the Sixth Amendment’s
guarantee of a jury trial in today’s world.” Id. at [751]. . . .
The Substantive Opinion emphasized that it was the
mandatory aspect of these determinate sentencing regimes
that implicated the Sixth Amendment’s requirement of a
jury trial:
We have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within
a statutory range. Indeed, everyone agrees that the
constitutional issues presented by these cases would
have been avoided entirely if Congress had omitted
from the SRA the provisions that make the Guidelines
binding on district judges . . . . For when a trial judge
exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to a
jury determination of the facts that the judge deems
relevant.
Id. at [750] (internal citations omitted).
5
....
In the Remedy Opinion, the Court ruled that
implementation of the Substantive Opinion required that
two provisions of the SRA be “sever[ed] and excise[d].”
Remedy Opinion, 125 S. Ct. at 764. These are subsection
3553(b)(1), mandating use of the Guidelines, and section
3742(e), which “sets forth standards of review on appeal.”
Remedy Opinion, id.
Having severed and excised the SRA’s standards
governing review of sentences, the Court in the Remedy
Opinion replaced them with “a practical standard of review
already familiar to appellate courts: review for
‘unreasonable[ness].’” Id. at 765 (quoting subsection
3742(e)(3)). . . .
Although the most significant aspect of the Remedy
Opinion is the excision of subsection 3553(b)(1), with the
result that the use of the Guidelines to select a sentence is
no longer mandatory, a critically important aspect of
Booker/Fanfan is the preservation of the entirety of the
SRA with the exception of only the two severed provisions.
As the Court noted in the Remedy Opinion, “The remainder
of the Act ‘function[s] independently.’” Remedy Opinion,
125 S. Ct. at 764 (citing Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684 (1987)). Notably, the Court explained,
“Section 3553(a) remains in effect, and sets forth numerous
factors that guide sentencing. Those factors in turn will
guide appellate courts, as they have in the past, in
determining whether a sentence is unreasonable.” Id. at 766.
Crosby, 397 F.3d at 107-10 (footnotes omitted) (alterations in
original).
The Court in Booker instructed that its holdings should be
applied “to all cases on direct review.” 125 S. Ct. at 769. The
Court, however, did not “believe that every appeal will lead to
6
a new sentencing hearing.” Id. Rather, the Court explained,
“we expect reviewing courts to apply ordinary prudential
doctrines, determining, for example, whether the issue was
raised below and whether it fails the ‘plain-error’ test.” Id.
III.
Coles contends that his sentence should be vacated in light
of Booker. Specifically, he argues that his Sixth Amendment
rights were violated, because his sentence was enhanced by the
trial court based on facts neither admitted by him nor proved to
a jury beyond a reasonable doubt. Although Coles objected to
the District Court’s findings of fact at sentencing, he raised no
arguments in the District Court questioning either the
constitutionality of the Guidelines or their mandatory
application. Accordingly, we review Coles’ Booker claim only
for plain error. FED . R. CRIM . P. 52(b).
Under the plain-error standard of Rule 52(b), “there must be
(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial
rights.’” Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993))
(alteration in original). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’”
Id. at 467 (quoting Olano, 507 U.S. at 732) (internal quotation
marks and alteration omitted).
It is clear that Coles satisfies the first two elements of the
plain-error test, for the District Court applied the Guidelines on
the assumption that they were mandatory. Following Booker,
this was error and it is undoubtedly “plain.” And the Supreme
Court has made it clear that “where the law at the time of trial
was settled and clearly contrary to the law at the time of appeal
. . . it is enough that an error be ‘plain’ at the time of appellate
consideration.” Id. at 468. The Government does not dispute
7
that Coles has satisfied the first two elements of the plain error
test. See Supplemental Br. for Appellee at 7 n.5.
We are also convinced that, if the District Court’s error was
prejudicial, the error would “seriously affect[] the fairness,
integrity, or public reputation of judicial proceedings.” As the
Seventh Circuit aptly observed, “[i]t is a miscarriage of justice
to give a person an illegal sentence that increases his
punishment, just as it is to convict an innocent person.”
Paladino, 2005 WL 435430, at *9; see also United States v.
Williams, 399 F.3d 450, 461 (2d Cir. 2005) (“[L]eaving in place
an error-infected sentence that would have been materially
different absent error and that could be readily corrected would
‘seriously affect[] the fairness, integrity or public reputation of
judicial proceedings.’ Indeed, it would seriously affect all
three.” (footnote and citation omitted) (alteration in original)).
Thus, the only question remaining is whether the District
Court’s error affected Coles’ substantial rights in a material way.
We now turn to that question.
IV.
We hold that, in assessing whether the District Court’s
Booker error was prejudicial, we must determine whether there
would have been a materially different result, more favorable to
the defendant, had the sentence been imposed in accordance
with the post-Booker sentencing regime. This mode of inquiry
has been adopted, either implicitly or explicitly, by the First,
Second, Fifth, Seventh, and Eleventh Circuits. See United
States v. Mares, No. 03-21035, 2005 WL 503715, at *9 (5th Cir.
Mar. 4, 2005) (“[T]he pertinent question is whether Mares
demonstrated that the sentencing judge – sentencing under an
advisory scheme rather than a mandatory one – would have
reached a significantly different result.”); Paladino, 2005 WL
435430, at *10 (“[I]f the judge would have imposed the same
sentence even if he had thought the guidelines merely advisory
8
(in which event there would have been no Sixth Amendment
violation), and the sentence would be lawful under the
post-Booker regime, there is no prejudice to the defendant.”);
United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005)
(“[T]he defendant must point to circumstances creating a
reasonable probability that the district court would impose a
different sentence more favorable to the defendant under the
new ‘advisory Guidelines’ Booker regime.”); United States v.
Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005) (“[I]n applying
the third prong, we ask whether there is a reasonable probability
of a different result if the guidelines had been applied in an
advisory instead of binding fashion by the sentencing judge in
this case.”); Crosby, 397 F.3d at 118 (“[A] sentence imposed
under a mistaken perception of the requirements of law will
satisfy plain error analysis if the sentence imposed under a
correct understanding would have been materially different.”).
The Fourth and Ninth Circuits, in contrast, have found plain
error under Booker when a trial judge determined facts which,
under the Guidelines, increased a sentence beyond that
authorized by the jury verdict or an admission by the defendant.
In other words, these circuits assess plain error without regard
to whether the sentencing judge would have reached a different
result under an advisory sentencing scheme. See United States
v. Hughes, No. 03-4172, 2005 WL 628224, at *5-*12 (4th Cir.
Mar. 16, 2005); United States v. Ameline, 400 F.3d 646, 654 (9th
Cir. 2005), reh’g en banc granted, 2005 WL 612710 (9th Cir.
Mar. 11, 2005). The problem with this approach is that it
employs the wrong baseline for determining prejudice in light of
Booker’s remedy. In other words, the courts employing this
approach assess error and prejudice as if the pre-Booker,
mandatory sentencing regime were still in place, and as if the
error were judicial factfinding under that regime. This flies in
the face of the Supreme Court’s remedial order in Booker.
9
In assessing whether a district court committed prejudicial
error under Booker, an appellate court must determine what the
sentencing court would have done had it not committed the
error. In their assessments of plain error, the Fourth and Ninth
Circuits find error when a sentencing court increased a
Guidelines sentence beyond that corresponding to the facts
established by the jury verdict or an admission by the defendant.
But such a finding seems to assume that judicial factfinding is
erroneous even under the advisory sentencing regime left us by
Booker, which it surely is not. The Supreme Court in Booker
plainly says:
We have never doubted the authority of a judge to exercise
broad discretion in imposing a sentence within a statutory
range. . . . [W]hen a trial judge exercises his discretion to
select a specific sentence within a defined range, the
defendant has no right to a jury determination of the facts
that the judge deems relevant.
125 S. Ct. at 750.
A prescient pre-Booker sentencing court committing no
error would have behaved just as a sentencing court in the post-
Booker era will operate: it would have treated the Guidelines as
advisory. And it would have committed no error if it had
increased a sentence beyond that suggested by the Guidelines in
light of the facts established by the jury verdict or an admission
by the defendant, so long as the sentence was within the
prescribed statutory range and otherwise reasonable.
As noted in Williams, the error under Booker “is the
mandatory use of the Guidelines enhancement, not the fact of
the enhancement.” 399 F.3d at 458; see also Antonakopoulos,
399 F.3d at 75 (“The error is not that a judge (by a
preponderance of the evidence) determined facts under the
Guidelines which increased a sentence beyond that authorized
by the jury verdict or an admission by the defendant; the error
10
is only that the judge did so in a mandatory Guidelines
system.”); Rodriguez, 398 F.3d at 1300 (“The error that was
committed in pre-Booker sentencing . . . is not that there were
extra-verdict enhancements . . . that led to an increase in the
defendant’s sentence. The error is that there were extra-verdict
enhancements used in a mandatory guidelines system.”).
V.
This brings us to the question of how to determine whether
the District Court would have imposed a sentence materially
more favorable to the defendant had it been aware of the post-
Booker sentencing regime. There undoubtedly will be some
cases in which a reviewing court will be confident that a
defendant has suffered no prejudice. For example, “if a judge
were to impose a sentence at the statutory maximum and say
that if he could he would have imposed an even longer sentence,
there would be no basis for thinking that if he had known that
the sentencing guidelines are merely advisory he would have
given the defendant a lighter sentence.” Paladino, 2005 WL
435430, at *9. Indeed, we recently found no prejudice in a case
in which the sentencing judge twice departed upward from the
Guidelines. See United States v. Smith, No. 03-3087, 2005 WL
627077 (D.C. Cir. Mar. 18, 2005) (per curiam). When the judge
initially departed upward, he told the defendant, “I believe, in
my view, that you deserve the sentence . . . imposed here.” Id.
at *1. The case was remanded before Booker issued and the trial
judge was forced to impose a shorter sentence on grounds not
relevant here. However, the trial judge again departed upward.
Id. On the second appeal, this court found that it was clear that
the defendant had suffered no prejudice:
The district judge, on each of the prior two sentencings,
imposed a sentence beyond what the Guidelines require. . . .
On remand, the judge was forced to impose a shorter
sentence – 21 months – but again reached the figure by
11
departing upward, even though the government had not
requested an upward departure on resentencing. . . .
Booker’s requirement that the sentencing judge
appreciate that he is not bound by the Guidelines thus
plainly cannot help Smith. Smith . . . recognizes that giving
the district judge wider latitude in this case could very well
result in a longer sentence. Smith was not prejudiced by the
impermissibly mandatory nature of the Guidelines; if
anything, he benefitted from it.
Id.
Conversely, there will be some cases in which we are
confident that the defendant suffered prejudice, say, for
example, if the sentencing judge indicated on the record that, but
for the Guidelines, she would have imposed a lower sentence.
In a case like this one, however, the record simply is not
sufficient for an appellate court to determine prejudice with any
confidence. The Government notes here that the District Court
sentenced Coles to 36 months in prison, “somewhat above the
lower end” of the 33-to-41 months Guidelines range, but this is
hardly conclusive. “A conscientious judge – one who took the
guidelines seriously whatever his private views – would pick a
sentence relative to the guideline range. If he thought the
defendant a more serious offender than an offender at the bottom
of the range, he would give him a higher sentence even if he
thought the entire range too high.” Paladino, 2005 WL 435430,
at *9. We agree with the Seventh Circuit, following the lead of
the Second Circuit, that “[t]he only practical way (and it
happens also to be the shortest, the easiest, the quickest, and the
surest way) to determine whether the kind of plain error argued
in these cases has actually occurred is to ask the district judge.”
Id. at *10; see also Crosby, 397 F.3d at 117.
The Fifth and Eleventh Circuits have concluded that,
because the burden of showing prejudice is on the defendant, the
12
fact that the record is insufficient to reach a conclusion
regarding prejudice means that the defendant necessarily loses.
See Rodriguez, 398 F.3d at 1301 (“[W]here the effect of an error
on the result in the district court is uncertain or indeterminate –
where we would have to speculate – the appellant has not met
his burden of showing a reasonable probability that the result
would have been different but for the error; he has not met his
burden of showing prejudice; he has not met his burden of
showing that his substantial rights have been affected.”); see
also Mares, 2005 WL 503715, at *9. But as the Seventh Circuit
has noted:
Given the alternative of simply asking the district judge to
tell us whether he would have given a different sentence,
and thus dispelling the epistemic fog, we cannot fathom
why [we should] condemn some unknown fraction of
criminal defendants to serve an illegal sentence. Crosby is
the middle way between placing on the defendant the
impossible burden of proving that the sentencing judge
would have imposed a different sentence had the judge not
thought the guidelines mandatory and requiring that all
defendants whose cases were pending when Booker was
decided are entitled to be resentenced, even when it is clear
that the judge would impose the same sentence and the
court of appeals would affirm.
Paladino, 2005 WL 435430, at *11.
Persuaded by the Second and Seventh Circuits, we conclude
that, because the record is insufficient to determine whether the
error was prejudicial, we will remand the record to the District
Court so that it may determine whether it would have imposed
a different sentence materially more favorable to the defendant
had it been fully aware of the post-Booker sentencing regime.
In making this determination, the District Court “need not
determine what that sentence would have been.” Crosby, 397
F.3d at 118 n.20. Crosby, 397 F.3d at 118 n.20. And while
13
“‘the District Court should obtain the views of counsel, at least
in writing, [it] “need not” require the presence of the
Defendant.’” Paladino, 2005 WL 435430, at *10 (quoting
Crosby, 397 F.3d at 120 (quoting FED . R. CRIM . P. 43(b)(3))).
We note that the “limited remand” procedures adopted by
the Second and Seventh Circuits offer slightly different
approaches. The Second Circuit procedure requires that the
district court itself vacate the original sentence if it determines
that resentencing is warranted. See Crosby, 397 F.3d at 117,
120; see also Williams, 399 F.3d at 461 n.15. By contrast, under
the Seventh Circuit’s procedure, the appellate court retains
jurisdiction throughout the limited remand, and thus it is the
appellate court that will “vacate the sentence upon being
notified by the judge that he would not have imposed it had he
known that the guidelines were merely advisory.” Paladino,
2005 WL 435430, at *10. We think the Seventh Circuit’s
approach is more faithful to Booker’s instruction that “reviewing
courts” should apply “ordinary prudential doctrines” such as
plain error, see 125 S. Ct. at 769, and we will accordingly retain
jurisdiction over this case.
Because the record is unclear, in this case the District Court
should also state whether the sentences for the defendant’s D.C.
Code convictions were the product of the court’s independent,
discretionary judgment. See United States v. Cutchin, 956 F.2d
1216, 1219 (D.C. Cir. 1992) (“[T]he Sentencing Guidelines
apply only to federal crimes under 18 U.S.C. § 3551(a).
Defendants found guilty of violations of the D.C. Code can only
be sentenced under the D.C. Code.”).
VI.
Accordingly, while retaining jurisdiction over the case, we
remand the record to the District Court for the limited purpose
of allowing it to determine whether it would have imposed a
14
different sentence, materially more favorable to the defendant,
had it been fully aware of the post-Booker sentencing regime.
So ordered.