United States v. Price, Clifton

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2005 Decided June 3, 2005

No. 03-3088

UNITED STATES OF AMERICA,
APPELLEE

v.

CLIFTON M. PRICE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 02cr00429-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Neil H. Jaffee and Tony W. Miles,
Assistant Federal Public Defenders, entered appearances.
John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the briefs were Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher and Elizabeth Trosman,
Assistant U.S. Attorneys.
Before: EDWARDS, HENDERSO N , and TATEL, Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge EDWARDS.
Opinion concurring in part filed by Circuit Judge
HENDERSON.
EDWARDS, Circuit Judge: Defendant-appellant Clifton
Price entered a conditional guilty plea to possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
(2000). On appeal, Price challenges the District Court’s denial
of his motion to suppress evidence, including the gun found on
his person, which he argues was obtained in violation of his
Fourth Amendment right to be free from unreasonable searches
and seizures. In addition, Price raises several challenges to his
sentence.
We affirm the District Court’s denial of Price’s suppression
motion. A police officer recovered the evidence in question as
a result of a frisk, which was justified by the officer’s reasonable
fear that Price was armed and dangerous. Because the frisk did
not violate the Fourth Amendment, the District Court did not err
in denying Price’s suppression motion.
Applying the reasonableness standard set forth by the
Supreme Court in United States v. Booker, 125 S. Ct. 738, 765-
67 (2005), we conclude that the sentence imposed by the District
Court cannot withstand review. We therefore vacate and
remand the District Court’s sentencing decision. On remand,
the District Court will be required to resentence Price pursuant
to the commands of Booker.
I. BACKGROUND
The following facts are drawn from testimony given at
Price’s suppression hearing by Kyle Fulmer, a Special Agent
with the Safe Streets Task Force unit of the Washington Field
Office of the Federal Bureau of Investigation (“FBI”). Price has
not contested these facts.
 3

On September 20, 2002, Fulmer was contacted by an
“extremely reliable informant” who told him that a man already
known to Fulmer as “Julio” was driving a silver Cadillac at the
3200 block of 8th Street in Southeast Washington, D.C. See Tr.
of Mots. Hr’g of 1/28/03 at 6, 10, reprinted in Appendix of
Appellant (“App.”). The informant relayed the tag number of
the vehicle and he also told Fulmer that “Julio” possessed at
least a quarter pound of marijuana in the car. See id. at 6-8.
Fulmer told the informant to keep an eye on the vehicle and to
contact him if the vehicle began to move. Id. at 8.
Fulmer then contacted Special Agent Kevin Ashby,
indicating that he needed some assistance in possibly stopping
a vehicle. Id. at 9. Fulmer began to drive toward 8th Street to
locate the silver Cadillac. He contacted the informant again,
who told him that “Julio” had begun driving the vehicle. See id.
Fulmer located the silver Cadillac at the intersection of Alabama
Avenue and Wheeler Road. Id. He was able to corroborate the
vehicle’s tag and he recognized the driver as the man he knew
as “Julio.” See id. at 10-11. Fulmer also soon observed that
there was a passenger in the vehicle, later identified as the
defendant Clifton Price. See id. at 11, 35.
Fulmer and Ashby, driving separate cars, began following
the Cadillac. After some time, Ashby joined Fulmer in Fulmer’s
vehicle. See id. at 11-13. When the Cadillac pulled into an alley
parallel to Wheeler Road, Fulmer activated his emergency lights
and siren. He and Ashby, wearing FBI vests and displaying
their badges, exited Fulmer’s vehicle and began yelling verbal
commands, identifying themselves as police officers and
instructing the occupants of the Cadillac to raise their hands and
place them outside the car windows. See id. at 13-15, 40-41.
Price does not contest that the stop of the vehicle was lawful.
Fulmer and Ashby next began to approach the Cadillac.
Fulmer testified:
 4

As I was approaching the passenger side, issuing the verbal
commands, the passenger, who we later identified as the
defendant, Mr. Price, was sticking his hands outside the
window, and at that time as I was getting closer, he began
to reach down to his waistband area with his left hand. . . .
Id. at 16. Fulmer believed that Price might be reaching for a
weapon, causing Fulmer to fear for his safety. See id. at 18, 20.
As soon as Price moved his hands toward his waistband,
Fulmer reiterated his verbal commands for Price to put his hands
outside the window. Id. at 19. Price complied and Fulmer
opened the car door and removed Price from the vehicle, placing
him on the ground. Fulmer then rolled Price onto his side and
frisked Price’s left waistband and pocket area, where he found
a small handgun. See id. at 19-21.
*****
On October 17, 2002, a federal grand jury indicted Price for
violating 18 U.S.C. § 922(g)(1), which forbids persons who have
been convicted of a crime punishable by a term of imprisonment
exceeding one year “to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce.”
On November 26, 2002, at the first status conference regarding
Price’s case, defense counsel informed the District Court that
Price wished to file a motion to suppress evidence obtained in
connection with the frisk. Price’s counsel made it clear,
however, that his client would likely plead guilty if the
suppression motion was denied. See Tr. of Status Conference of
11/26/02 at 3, reprinted in App. On January 28, 2003, the
District Court held a hearing on Price’s suppression motion.
Following the hearing, the trial judge denied Price’s motion in
an oral ruling. Price’s counsel then informed the District Court
 5

that it was not necessary to set a trial date, because Price was
likely to plead guilty. Tr. of 1/28/03 at 81-82.
On March 25, 2003, at another status hearing, the
prosecutor informed the District Court that the parties were
working out the final language of a conditional guilty plea, in
which Price would plead guilty to the offense but reserve his
right to appeal the District Court’s denial of his suppression
motion. See Tr. of Status Hr’g of 3/25/03 at 2, reprinted in App.
One week later, Price indicated an interest in retaining a new
attorney. See Tr. of Status Conference of 4/1/02 at 2-5,
reprinted in App. Price subsequently agreed to proceed with his
appointed counsel and he pleaded guilty on April 22, 2003,
reserving the right to appeal the denial of his suppression
motion. See Tr. of Status Call of 4/22/03 at 9-10, reprinted in
App. It is undisputed that, as a result of Price’s indication that
he was likely to plead guilty and his ultimate guilty plea, the
Government was spared the burdens of preparing for trial. See
Recording of Oral Argument at 17:45-18:02.
On May 28, 2003, a United States probation officer
prepared Price’s Presentence Investigation Report (“PSR”).
Using the 2001 version of the Sentencing Guidelines, the
probation officer found that Price’s total offense level was 18
and that his criminal history score was 8 and, thus, his criminal
history category was IV. This offense level and criminal history
category resulted in a sentencing range of 41-51 months. These
calculations included a two-point reduction in Price’s offense
level under § 3E1.1(a) of the Guidelines, because Price accepted
responsibility for his conduct. See U.S.S.G. § 3E1.1(a) (2001).
However, the probation officer recommended denying an
additional one-level reduction under § 3E1.1(b)(2). The
additional reduction is available to defendants who qualify for
the two-level reduction under § 3E1.1(a), if the defendant’s
offense level prior to this two-level reduction is 16 or greater
and the defendant has given timely notice of an intent to plead
 6

guilty so that the Government is spared the burden of preparing
for trial and the district court may allocate its resources
efficiently. Id. § 3E1.1(b)(2). In determining Price’s criminal
history score, the probation officer included two Maryland
convictions that Price allegedly received in 1999 and 2000.
Price’s counsel filed written objections to the PSR, arguing
that Price was entitled to an additional one-level reduction in his
offense level under § 3E1.1(b)(2) and that the PSR’s use of the
two alleged prior Maryland convictions to increase Price’s
criminal history score was erroneous. According to Price’s
counsel, under the proper calculations of Price’s offense level
and criminal history score, the applicable sentencing range was
30-37 months. See Letter from Tony W. Miles, Assistant
Federal Public Defender, to United States Probation Officer of
6/5/03, reprinted in App. at 41, 41-42. The probation officer
rejected both of these objections in a revised PSR. The only
sources cited by the probation officer to support the existence of
either of the alleged Maryland convictions were unspecified
“documents” and “documentation” in the Maryland court
system. The probation officer did not give any indication of the
nature or reliability of these documents.
At a July 17, 2003 sentencing hearing before the District
Court, Price’s counsel again raised objections on the issues of
the third-level reduction for acceptance of responsibility and the
asserted improper use of two Maryland convictions in
calculating Price’s criminal history category. The District Court
granted Price the two-level reduction for acceptance of
responsibility under § 3E1.1(a), but the court rejected Price’s
argument that he was entitled to a third-level reduction under
§ 3E1.1(b)(2). The District Court did not find that Price’s
notification of his intention to plead guilty was untimely, that
the Government expended any resources preparing for trial, or
that the court was not able to allocate its resources efficiently.
Instead, the District Court stated:
 7

It’s a choice that [Price] has to make. He was not accepting
responsibility if he was able to convince the court that he
had been the victim of a constitutional violation. That’s not
a frank and candid acknowledgment of guilt.
Tr. of Sentencing Hr’g of 7/17/02 at 2-3, reprinted in App.
With regard to the two Maryland convictions, Price’s counsel
argued that “we still have not been presented with evidence that
we believe is sufficient enough to prove that the two prior
convictions exist that we challenged.” Id. at 7. The court
responded: “I don’t know what you need in the way of
evidence. The Probation Officer has investigated and found –
presumably has investigated and found that these are a matter of
record among the Maryland court documents.” Id. The District
Court sentenced Price to 51 months’ imprisonment, as well as
three years of supervised release and a $100 special assessment.
Id. at 12-13.
Because Price was sentenced in July 2003, more than a year
before the Supreme Court’s decision in United States v. Booker,
125 S. Ct. 738 (2005), the District Court applied the Sentencing
Guidelines as if they were mandatory. This was error under
Booker. The Court in Booker “sever[ed] and excise[d]” two
provisions of the Sentencing Reform Act of 1984, as amended,
18 U.S.C. § 3551 et seq., 28 U.S.C. § 991 et seq. Booker, 125
S. Ct. at 764. These provisions are 18 U.S.C. § 3553(b)(1),
which mandated judicial use of the Sentencing Guidelines, and
section 3742(e), which “set[] forth standards of review on
appeal.” Id. The Court replaced section 3742(e) with “a
practical standard of review already familiar to appellate courts:
review for ‘unreasonable[ness].’” Id. at 765 (quoting 18 U.S.C.
§3742(e)(3) (1994)). The Court also instructed that its holdings
should be applied “to all cases on direct review.” Id. at 769.
Price challenges both the District Court’s denial of his
suppression motion and the length of his sentence. We affirm
 8

in part, vacate in part, and remand the case for further
proceedings.
II. ANALYSIS
A. The Denial of Price’s Suppression Motion
Price argues that Special Agent Fulmer violated the Fourth
Amendment’s prohibition against unreasonable searches and
seizures by forcing Price from the car and patting him down.
The Government responds that a reasonable officer in Special
Agent Fulmer’s position would have been warranted in the
belief that his safety was in danger, and therefore Fulmer’s
actions were justified under Terry v. Ohio, 392 U.S. 1 (1968).
We agree with the Government.
As we have explained, “[i]n Terry v. Ohio, the Supreme
Court held that a police officer needs neither probable cause nor
a warrant to conduct a brief investigatory stop of an individual
if [the officer] has a reasonable suspicion that ‘criminal activity
may be afoot.’” United States v. Brown, 334 F.3d 1161, 1164
(D.C. Cir. 2003) (quoting Terry, 392 U.S. at 30). Moreover, the
officer “may conduct a protective search of the outer layers of
the suspect’s clothing if [the officer] has a ‘reasonable fear’ that
the suspect is armed and dangerous.” Id. (quoting Terry, 392
U.S. at 30).
In reviewing such [protective] searches, we apply an
objective test based on the facts available to the officer at
the time of the search: “The officer need not be absolutely
certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was
in danger.” He must be able to point to “specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that
intrusion.”
 9

United States v. Mitchell, 951 F.2d 1291, 1295-96 (D.C. Cir.
1991) (quoting Terry, 392 U.S. at 21, 27). We apply this
standard de novo to determine whether an officer in Special
Agent Fulmer’s position reasonably would fear that Price was
armed and dangerous, thus justifying a frisk of Price. See
Brown, 334 F.3d at 1164 (citing Ornelas v. United States, 517
U.S. 690, 699 (1996)).
Price does not dispute the lawfulness of the stop of the
vehicle in which he was a passenger. Therefore, the stop
preceding the Terry frisk is not an issue. There are two factors
in this case, which, taken together, demonstrate that an officer
in Special Agent Fulmer’s position reasonably would fear that
Price was armed and dangerous. First, a reliable informant told
Fulmer that the driver of the vehicle was transporting a stash of
illicit drugs. Second, after Fulmer and Ashby approached the
car and issued verbal commands to the vehicle’s occupants to
place their hands outside the windows, Price reached back inside
the car toward his waistband.
We do not mean to suggest that a Terry frisk would have
been justified absent the totality of these circumstances. On this
record, however, we find that Agent Fulmer acted reasonably.
Where a police officer conducts a lawful traffic stop and has
been told by a reliable informant that the driver of the stopped
vehicle is transporting a stash of illegal drugs, the officer has a
reasonable fear that a passenger in the vehicle is armed and
dangerous if that passenger disobeys the officer’s command to
keep his hands in plain view and instead reaches back toward his
waistband in a motion that is consistent with an attempt to
retrieve a weapon. See United States v. Edmonds, 240 F.3d 55,
60 (D.C. Cir. 2001) (“[E]ven though a single factor might not
itself be sufficiently probative of wrongdoing to give rise to a
reasonable suspicion [justifying a Terry stop], the combination
of several factors – especially when viewed through the eyes of
an experienced officer – may.”); see also id. at 61-62
 10

(recognizing that furtive gestures undertaken in response to
police presence can serve as a factor in establishing reasonable
suspicion). Therefore, the District Court properly denied Price’s
motion to suppress evidence.
B. Sentencing
Price argues that the District Court also erred in its
application of the Sentencing Guidelines to his case. Under
Booker, we review the District Court’s sentence to ensure that
it is reasonable in light of the sentencing factors that Congress
specified in 18 U.S.C. § 3553(a). See Booker, 125 S. Ct. at 765-
67. As the Court explained in Booker: “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. These factors include, among others,
the nature of the offense, the defendant’s history, the need for
the sentence to promote adequate deterrence and to provide the
defendant with needed educational or vocational training, any
pertinent policy statements issued by the Sentencing
Commission, the need to avoid unwarranted sentencing
disparities among similarly situated defendants, and the need to
provide restitution to any victims. See 18 U.S.C. § 3553(a)
(2000) (amended 2003).
In deciding whether a sentence is reasonable, we must also
consider whether the District Court committed legal error. “[A]
sentence would not be ‘reasonable,’ regardless of length, if legal
errors, properly to be considered on appeal, led to its
imposition.” United States v. Crosby, 397 F.3d 103, 114 (2d
Cir. 2005). A failure to follow the strictures of the Sentencing
Guidelines is among the errors that might cause a sentence to be
overturned on appeal. We do not mean to suggest that the
District Court is required to adhere to the Sentencing Guidelines.
Under Booker, the Guidelines are now advisory, i.e., one among
a number of factors to be weighed by the District Court in
 11

sentencing. Rather, what we do hold here is that when the
District Court purports to apply the Guidelines it must do so
without error.
On the record in this case, we hold that the District Court
committed error by: (1) denying Price’s request for a third-level
reduction for acceptance of responsibility when, under the plain
language of the Guidelines, Price was entitled to such a
reduction; and (2) including one of the two Maryland
convictions in the calculation of Price’s criminal history score,
when Price clearly disputed that conviction and the Government
did not sustain its burden of proof in establishing the conviction.
Because we remand the case in light of errors made by the
District Court in applying the Sentencing Guidelines, we need
not decide whether a remand is required under United States v.
Coles, 403 F.3d 764 (D.C. Cir. 2005) (per curiam) (setting forth
principles governing the application of plain-error doctrine to
appeals of pre-Booker sentences).
1. Acceptance of Responsibility
Under the Guidelines, Price was entitled to a third-level
reduction in his offense level pursuant to U.S.S.G. § 3E1.1(b)(2)
(2001) if he “timely notif[ied] authorities of his intention to
enter a plea of guilty, thereby permitting the government to
avoid preparing for trial and permitting the court to allocate its
resources efficiently.” Price clearly satisfied this standard here.
In November 2002, at the very first status conference in this
case, Price’s counsel indicated that, if Price lost his motion to
suppress, he was likely to plead guilty. Once Price’s motion to
suppress was denied, his counsel immediately informed the trial
court that it was not necessary to set a trial date because a guilty
plea was likely. And Price did indeed plead guilty in April
2003. Moreover, the Government does not dispute that, as a
result of Price’s timely notification of his intent to plead guilty,
the Government was spared the burden of preparing for trial.
See Recording of Oral Argument at 17:45-18:02 (statement of
 12

Assistant United States Attorney that, while the Government
does not believe that Price was entitled to a third-level
reduction: “We’re certainly not relying on any possible trial
preparation by the Government. Indeed, we don’t contend that
the trial prosecutor in this case did anything more than perhaps
mentally anticipate that he might have to go to trial.”). And it is
evident that the District Court was able to allocate its resources
more efficiently, because the District Court never set a date for
trial. Thus, applying the plain language of § 3E1.1(b)(2), we
hold that Price was entitled to a third-point reduction in his
offense level under the Guidelines.
The District Court reached a contrary result, apparently in
the belief that a defendant who moves to suppress evidence
cannot be eligible for a third-level reduction under
§ 3E1.1(b)(2). See Tr. of 7/17/03 at 2-3. The District Court’s
conclusion on this point cannot be reconciled with the plain
language of § 3E1.1(b)(2), which states that a defendant is
eligible for a third-level reduction if he timely notifies
“authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial.”
U.S.S.G. § 3E1.1(b)(2) (emphasis added). While the
Government did have to prepare for a suppression hearing, the
Government does not dispute that it never had to prepare for
trial. Therefore, under the plain language of U.S.S.G. §
3E1.1(b)(2), Price was entitled to a third-level reduction in his
offense level. Accord, e.g., United States v. Marquez, 337 F.3d
1203, 1212 (10th Cir. 2003) (“[W]e hold that where a defendant
has filed a non-frivolous motion to suppress, and there is no
evidence that the government engaged in preparation beyond
that which was required for the motion, a district court may not
rely on the fact that the defendant filed a motion to suppress . . .
to justify a denial of the third level reduction under
§ 3E1.1(b)(2).”); United States v. Kimple, 27 F.3d 1409, 1414-
15 (9th Cir. 1994) (in rejecting the Government’s argument that
a defendant was not entitled to a third-level reduction under
 13

§ 3E1.1(b)(2), stating that the Government’s mere opposition to
“a suppression motion is not sufficient to constitute trial
preparation”). But see, e.g., United States v. Rogers, 129 F.3d
76, 78, 80-81 (2d Cir. 1997) (per curiam) (taking a contrary
view in a case in which the defendant offered to enter a
conditional guilty plea after the district court denied her motion
to suppress, and where the Government rejected the offer).
In its brief to this court, the Government suggests that Price
should not be awarded a third-level reduction under
§ 3E1.1(b)(2), because the trial court briefly continued the case
when Price expressed a desire for a new attorney. See Gov’t Br.
at 30. This argument is without merit. It is undisputed that the
Government was spared the burden of preparing for trial,
because Price timely notified authorities of his intention to plead
guilty. Therefore, any brief delay caused by Price’s short-lived
desire to obtain new counsel clearly did not require prosecutors
to expend resources for trial, and thus it provides no basis under
the plain language of § 3E1.1(b)(2) to deny Price’s request for
an additional one-level reduction in his offense level. See
Marquez, 337 F.3d at 1212.
2. Prior Convictions
Price also argues that the District Court erred in applying
the Guidelines by enhancing his sentence based on two prior
Maryland convictions, because the Government failed to satisfy
its burden of proving the existence of those convictions. Price’s
objection is well taken with respect to one of the two
convictions.
The Government does not dispute that it carries the burden
of proving any facts that may be relevant in sentencing. We
have held that the Government generally may satisfy this burden
by relying on undisputed facts in a presentence investigation
report, so long as the facts of the report are not internally
contradictory, wildly implausible, or inconsistent with evidence
 14

from the trial. See United States v. Pinnick, 47 F.3d 434, 437
(D.C. Cir. 1995). However, the Government may not simply
rely on assertions in a presentence report if those assertions are
contested by the defendant. Thus, when the defendant calls into
dispute a presentence report’s description of an alleged prior
conviction, the Government must demonstrate that the
description in the report is based on a sufficiently reliable source
to establish the accuracy of that description. See United States
v. Richardson, 161 F.3d 728, 737-38 (D.C. Cir. 1998). This
burden is triggered whenever a defendant disputes the factual
assertions in the report. The defendant need not produce any
evidence, for the Government carries the burden to prove the
truth of the disputed assertion. See Pinnick, 47 F.3d at 437-38;
Richardson, 161 F.3d at 737-38.
In this case, if, during the proceedings below, Price did in
fact dispute the existence of the two Maryland convictions
described in his PSR, it is evident that the Government failed to
meet its burden of demonstrating that the PSR assertions were
based on sufficiently reliable sources. The only sources cited by
the probation officer to establish the existence of either
conviction were “[d]ocumentation from the District Court for
Prince George’s County, Maryland” and “Court documents and
criminal history information from the State of Maryland.” As
Price correctly points out, it is unclear what sort of “documents”
the probation officer reviewed. This reference could be, for
instance, to a docket listing, which would lack the necessary
indicia of reliability for the Government to meet its burden
under Richardson. See 161 F.3d at 738 (explaining that the
District Court erred when its sentencing enhancement was based
on the description of a prior conviction in a presentence report
where “there was simply no way of knowing at sentencing
whether [the] description was obtained from a legitimate and
reliable source, such as a charging document, a plea agreement,
or a previous presentence investigation report adopted by the
state court . . . or whether this description came from an untested
 15

source, such as an arrest warrant, a police report, or a
prosecutor’s proffer.”).
Under Pinnick, however, it is clear that the Government’s
Richardson burden is triggered only when the defendant
disputes the factual accuracy of the description of prior
convictions in the presentence report. In this case, Price clearly
contested the factual accuracy of one of the two convictions.
Specifically, after the probation officer prepared Price’s initial
PSR, Price’s counsel wrote a letter to the probation officer,
which objected that “Mr. Price is not associated with Prince
George’s County, Maryland case number [number intentionally
omitted],” a 1999 offense for attempting to elude the police.
Letter from Miles to probation officer of 6/5/03, App. at 41.
This statement plainly disputes the factual accuracy of the PSR
with regard to the 1999 conviction. Therefore, the
Government’s burden under Richardson to prove the existence
of that conviction through a reliable source was indeed
triggered. And, because the Government failed to meet its
burden, the District Court erred by enhancing Price’s sentence
based on that conviction.
However, with regard to the second disputed Maryland
conviction, an alleged 2000 offense for possession of marijuana
and a handgun, the record is unclear as to whether Price objected
to the accuracy of the PSR’s description. Therefore, we cannot
say that the District committed legal error by enhancing Price’s
sentence based on this conviction.
III. CONCLUSION
We affirm the District Court’s denial of Price’s suppression
motion. We vacate the District Court’s sentencing decision and
remand the case for resentencing. On remand, the District Court
will be required to start anew, under the legal regime established
by Booker, which makes it clear that the Sentencing Guidelines
are advisory.
 KAREN LECRAFT HENDERSON, Circuit Judge, concurring in
part:
I join the majority opinion but write separately on two points.
First, under the federal sentencing standards regime announced
by the United States Supreme Court in United States v. Booker,
125 S. Ct. 738 (2005), and on the record in this case, I believe
the sentencing court on remand can reasonably decline to
consider awarding Price any credit for accepting responsibility
and instead resentence him to the term of imprisonment we
vacate today, if not a longer term. Second, I believe that the
majority reads our decision in United States v. Richardson, 161
F.3d 728 (D.C. Cir. 1998), too broadly now that we have entered
the post-Guidelines world.
Following Booker, a sentencing court is no longer “bound” to
apply the Guidelines but must only “consult those Guidelines
and take them into account when sentencing”; for our part, we
now review a sentencing decision only for “unreasonableness.”
125 S. Ct. at 767. These changes flow from the remedy portion
of the Book er opinion, in which the Court severed two
provisions of the Sentencing Reform Act of 1984 (SRA or Act),
as amended, 18 U.S.C. §§ 3551 et seq., 28 U.S.C. §§ 991 et seq.
It first severed the provision making the Guidelines mandatory,
18 U.S.C. § 3553(b)(1), while concluding that the remainder of
the Act “ ‘function[s] independently.’ ” Booker, 125 S. Ct. at
764-65 (quoting & citing Alaska Airlines, Inc. v. Brock, 480
U.S. 678, 684 (1987)) (alteration in Booker). It also excised the
provision of the SRA that “sets forth standards of review on
appeal,” 18 U.S.C. § 3742(e), replacing it with “a practical
standard of review already familiar to appellate courts: review
for ‘unreasonable[ness].’ ” Booker, 125 S. Ct. at 765 (quoting
18 U.S.C. § 3742(e)(3) (1994 ed.)) (alteration in Booker). With
these two modifications, the Court explained, “[s]ection 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
 2

unreasonable.” Id. at 766. The Booker decision applies “to all
cases on direct review,” including this one. Id. at 769.
The district court’s duty to consult the Guidelines is, however,
quite different from the previous duty to apply them
mandatorily. Now, in setting a particular sentence, the district
court must “take account of the Guidelines together with other
sentencing goals.” Id. at 764. This means that the district court
must consider the criteria set forth in section 3553(a), including
the Guidelines sentencing range established for “the applicable
category of offense committed by the applicable category of
defendant” as well as policy statements of the Sentencing
Commission. 18 U.S.C. § 3553(a)(4)-(5); see Booker, 125 S. Ct.
at 764. The district court must also continue, the Supreme Court
tells us, “to impose sentences that reflect the seriousness of the
offense, promote respect for the law, provide just punishment,
afford adequate deterrence, protect the public, and effectively
provide the defendant with needed educational or vocational
training and medical care.” Booker, 125 S. Ct. at 765 (citing 18
U.S.C. § 3553(a)(2)). What the practical difference between the
duty to consult the Guidelines and the duty to apply them means
under the “reasonableness” standard of review will emerge only
on a case-by-case basis. But it is clear that the duty to consult
the Guidelines neither reduces them to “a body of casual advice,
to be consulted or overlooked at the whim of a sentencing
judge,” United States v. Crosby, 397 F.3d 103, 113 (2d Cir.
2005), nor maintains de facto the mandatory sentencing regime
declared unconstitutional in Booker, 125 S. Ct. at 750, 756, 767.
Under the new sentencing regime, and on this record, I believe
it would be reasonable for the sentencing court on remand to
decline to consider awarding Price any credit for accepting
responsibility and to re-impose, if not increase, the sentence
vacated herein. To say that Price is no stranger to the criminal
justice system is an understatement. At the time of the offense
on which he is to be resentenced, i.e., felon in possession of a
 3

firearm and ammunition, see 18 U.S.C. § 922(g)(1), he was on
double-probation in the District of Columbia, where he has
twice been convicted of crimes: one time for domestic violence,
the other for possession with intent to distribute cocaine. See
Appellee’s Record Material at Tab 10, p.2. And if the
government adequately establishes the information in the pre-
sentence investigation report regarding the two Maryland
offenses, the sentencing court can add those two offenses to his
conviction tally. Up to now, Price’s criminal life has been
charmed; the sentencing authorities have imposed suspended
sentences and probation for his four convictions. This plainly
has served neither Price nor the community well. As the
original sentencing court observed, Price “just does not seem to
learn. He does not learn.” Sentencing Tr. of 7/17/03 at 8; see id.
at 10 (“If he[] were a novice I might feel differently but the fact
that two other courts have given him a break and he didn’t learn
from those prior experiences does not encourage me to think that
he is serious about changing his life style.”). Given that Price’s
public criminal record reveals a man determined to burnish his
criminal credentials and at society’s expense—two factors
appropriate for consideration on resentencing, see 18 U.S.C.
§ 3553(a)(1) & (2)(C)1 —I believe the sentencing court could
reasonably decline to lessen his punishment in any way,
including by considering his alleged acceptance of
responsibility.
As to the two Maryland convictions, I do not agree that, on
remand, the government must “meet its burden under
Richardson.” Maj. Op. at 14. In Richardson, we held that,
under the Guidelines, the sentencing court could not “turn to
potentially unreliable second-hand information in designating a

1
In determining Price’s sentence on remand, the sentencing court
must consider both “the history and characteristics of the defendant,”
18 U.S.C. § 3553(a)(1), and “the need . . . to protect the public from
further crimes of the defendant,” id. § 3553(a)(2)(C).
 4

prior offense as a crime of violence.” 161 F.3d at 738. We
explained that the description of the defendant’s prior conviction
in the pre-sentence report failed to “reliably indicate the precise
crime to which appellant pled guilty” because “there was simply
no way of knowing at sentencing whether this description was
obtained from a legitimate and reliable source, such as a
charging document, a plea agreement, or a previous presentence
investigation report adopted by the state court.” Id. at 737-38
(emphasis added). The reason such pin-point accuracy was
necessary, however, was that the prior conviction had to
constitute a “crime of violence” in order to be used in computing
the defendant’s offense level. Id. at 737. But “offense levels,”
“adjustments,” “departures” and all of the other Guidelines argot
has been jettisoned by Booker. We now operate in a “back to
the future” sentencing world when, pre-Guidelines, all that our
Circuit required of the government in this regard was that it
submit “some verification,”—that is, any “evidence of a
sufficiently reliable caliber”—to support the information that it
supplied the sentencing court and that the defendant challenged.
See United States v. Lemon, 723 F.2d 922, 934, 942 (D.C. Cir.
1983); United States v. Bass, 535 F.2d 110, 121 (D.C. Cir.
1976). In my view, that is all that is required once again.