United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 27, 2005 Decided November 8, 2005
No. 04-3143
UNITED STATES OF AMERICA,
APPELLEE
v.
LEE M. AYERS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00324-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, and Roy W. McLeese,
III, Assistant U.S. Attorney.
Before: GINSBURG, Chief Judge, and HENDERSON and
GRIFFITH, Circuit Judges.
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Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Defendant Lee Ayers was
convicted by a jury of unlawful possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1). On appeal he
challenges his sentence, which was imposed after the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004),
but prior to its decision in United States v. Booker, 125 S. Ct.
738 (2005). The district court, aware that the United States
Sentencing Guidelines were vulnerable after Blakely, imposed
a sentence of 53 months, near the low end of the applicable
guidelines range (51-63 months), and announced an alternative
but identical sentence “should the guidelines be struck down and
ruled unconstitutional in their totality.” Ayers anticipated the
actual result in Booker and, believing the record did not contain
all the evidence relevant to a non-guidelines sentence, asked that
he be permitted to supplement the record with additional
mitigating evidence, which request the court denied.
Ayers challenged under the Sixth Amendment to the
Constitution of the United States the mandatory enhancement of
his sentence (a two-level enhancement of his base offense level
under U.S.S.G. § 2K2.1(b)(4) for a stolen firearm) based upon
facts not proven to a jury beyond a reasonable doubt. In light of
the Supreme Court’s decision in Booker, the Government now
concedes the district court’s constitutional error. The
Government argues, however, that the error was harmless in that
it can show “beyond a reasonable doubt that the error
complained of did not contribute to the [sentence] obtained.”
See United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir.
2005) (quoting Chapman v. California, 386 U.S. 18, 24 (1967))
(alteration in original); cf. United States v. Coles, 403 F.3d 764,
767 (D.C. Cir. 2005) (where defendant did not preserve
constitutional error, review is for plain error and defendant must
show prejudice). Under Booker, the error “is the mandatory use
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of the Guidelines enhancement, not the fact of the
enhancement.” Coles, 403 F.3d at 769 (quoting United States v.
Williams, 399 F.3d 450, 458 (2d Cir. 2005)).
The Government argues the record establishes beyond a
reasonable doubt that the district court’s error was harmless
because the district court announced an identical alternative
sentence “in the event the Guidelines were invalidated.” Ayers
counters that the record is inadequate to discharge the
Government’s heavy burden because
there is no indication in the record that the sentencing
judge complied with Booker’s requirement that she
consider the advisory Guidelines range as only one of
many factors to be considered in fashioning an
appropriate sentence that furthers the congressional
sentencing goals as set forth in [18 U.S.C.] § 3553(a).
The Supreme Court, in the remedy portion of its decision in
Booker, not only rendered the Guidelines advisory rather than
mandatory by invalidating 18 U.S.C. §§ 3553(b)(1) & 3742(e);
it also preserved the remainder of the Sentencing Reform Act of
1984, 18 U.S.C. § 3551 et seq., including the sentencing factors
set out in § 3553(a). See Booker, 125 S. Ct. at 764-68; Coles,
403 F.3d at 766. As the Second Circuit has recognized,
therefore, “without the mandatory duty to apply the Guidelines,
consideration of the other section 3553(a) factors ‘acquires
renewed significance.’” United States v. Lake, 419 F.3d 111,
114 (2d Cir. 2005) (quoting United States v. Crosby, 397 F.3d
103, 111 (2d Cir. 2005)).
Although the announcement of an identical alternative
sentence might establish harmless error on a different record, in
this case we are not certain beyond a reasonable doubt that the
district court, when announcing its alternative sentence,
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understood its obligation to consider the factors in § 3553(a).
The district court did not explain why its alternative sentence
matched its guidelines sentence; rather, the judge said only “I
see no reason to change [from the sentence under the
Guidelines].” This by itself might not give rise to a reasonable
doubt, but there is more. In his sentencing memorandum, Ayers
requested, “If the Court intend[ed] to impose an indeterminate
sentence, either ignoring the guidelines completely or using
them as advisory only,” that it order the probation office
to prepare a new presentence report aimed at an
indeterminate sentence and continue the scheduled
sentencing hearing so that [Ayers would] have a full
opportunity to present appropriate mitigating evidence,
consistent with the dictates of 18 U.S.C. § 3661 (“No
limitation shall be placed on the information
concerning the background, character, and conduct of
[a defendant] which a court of the United States may
receive and consider for the purpose of imposing an
appropriate sentence”).
Mitigating evidence would have been relevant, of course, to the
court’s analysis under § 3553(a). That the district court denied
this request informs our interpretation of the alternative sentence
it imposed and leaves us in doubt as to whether the court
considered the other sentencing factors in § 3553(a) together
with the Guidelines in formulating its non-guidelines sentence.
Cf. United States v. Porter, 417 F.3d 914, 917-18 (8th Cir. 2005)
(district court’s imposition of alternative sentence “as if Blakely
would apply” deemed “too cryptic” to conclude it “contemplated
an advisory guidelines system under which it was required to
consider the advisory guideline range as one factor among
others listed in 18 U.S.C. § 3553(a)”).
When the district court does not exercise its discretion to
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grant a sentence outside the guidelines range and the defendant
does not object to the district court’s failure to explain its
reasoning on the record, we begin our review with the
presumption “that the district court knew and applied the law
correctly.” See United States v. Pinnick, 47 F.3d 434, 439-40
(D.C. Cir. 1995) (quoting United States v. Garcia-Garcia, 927
F.2d 489, 491 (9th Cir. 1991)). Therefore, we ordinarily
presume a district court imposing an alternative non-guidelines
sentence took into account all the factors listed in § 3553(a) and
accorded them the appropriate significance. See, e.g., United
States v. Haire, No. 02-3009, 2005 U.S. App. LEXIS 15158
(D.C. Cir. July 22, 2005). In this case, however, that
presumption is rebutted by the district court’s unexplained
denial of Ayers’ request to enter additional mitigating evidence
specifically for the court’s use in determining his non-guidelines
sentence.
The Government seeks to avoid this conclusion on the
ground that the district court had an opportunity to consider all
relevant mitigating factors because, at the sentencing hearing,
before it announced its alternative non-guidelines sentence, the
court asked whether the defendant had anything to add. As we
have seen, however, Ayers had previously objected to the
adequacy of the record to support an indeterminate sentence. In
response to the district court’s question, therefore, he
understandably said he had nothing to add to his “written
filings.” The district court did not take this “opportunity” to
reconsider its rejection of the defendant’s proffer.
Because Ayers preserved his objection to his sentence and
because the Government has failed to show that mandatory
application of the Guidelines was harmless, we vacate Ayers’
sentence and remand this case to the district court for
resentencing consistent with the Supreme Court’s decision in
Booker. Compare Coumaris, 399 F.3d at 351 (vacating sentence
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and remanding for resentencing when mandatory use of
Guidelines not shown to be harmless), with Coles, 403 F.3d at
767 (applying plain error standard and remanding record for
district court to 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”).
So ordered.