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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2005 Decided February 7, 2006
No. 04-3170
UNITED STATES OF AMERICA,
APPELLEE
v.
LEONARD GILLESPIE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00494)
Michael F. Williams, appointed by the court, argued the
cause and filed the briefs for appellant. With him on the brief
was Barbara Mack Harding.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was Kenneth L.
Wainstein, U.S. Attorney. Roy W. McLeese, III, Assistant U.S.
Attorney, entered an appearance.
2
Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Leonard Gillespie appeals his
conviction of drug and firearms offenses on the ground that his
sentence violates the Fifth and Sixth Amendments of the United
States Constitution. Because the claimed violations were
rendered harmless beyond a reasonable doubt by the district
court’s announcement of a discretionary “alternative sentence”
identical to that which it imposed under the United States
Sentencing Guidelines, we affirm.
I.
Upon executing a search warrant for an apartment,
Metropolitan Police Department officers encountered Gillespie,
who confirmed he lived in the apartment. After further
questioning, Gillespie guided them to the bedroom, where the
officers recovered approximately one gram of cocaine base, two
loaded handguns, several loose rounds of ammunition, and
numerous items of drug paraphernalia. The officers seized
approximately 1.7 grams of cocaine base and $419 from
Gillespie’s person. Gillespie admitted the guns were his.
Subsequent analysis by the Drug Enforcement Administration
determined that the officers had recovered a total of 2.24 grams
of cocaine base from the apartment.
Gillespie was indicted on one count of unlawful possession
with intent to distribute “a detectable amount” of a controlled
substance, 21 U.S.C. § 841(a)(1), (b)(1)(C); one count of
possession of a firearm during a drug trafficking offense, 18
U.S.C. § 924(c)(1); and three counts of possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1). The parties
stipulated at trial that the firearms and ammunition met the
3
statutory definitions of those terms, that they were manufactured
outside of the District of Columbia, and that Gillespie had been
previously convicted of a felony. Over defense objection, the
district court adopted the prosecutor’s suggestion that the jury
verdict form provide space for the jury to state the quantity of
drugs when it rendered its verdict. The jury found Gillespie
guilty on the possession-with-intent-to-distribute and felon-in-
possession counts and stated on the verdict form that the
quantity of cocaine base was 2.24 grams.
Under 21 U.S.C. § 841(b)(1)(C), Gillespie faced a
maximum sentence of twenty years’ imprisonment on the drug
possession count. The district court found Gillespie’s offense
level under the Sentencing Guidelines, which had yet to be
rendered advisory by United States v. Booker, 125 S. Ct. 738
(2005), to be twenty-two: a base offense level of twenty, for
possessing “[a]t least 2g but less than 3g of cocaine base,”
U.S.S.G. § 2D1.1(c)(10), and a two-level enhancement because
“a dangerous weapon (including a firearm) was possessed,”
U.S.S.G. § 2.D1.1(b)(1). This corresponded to a sentence of
forty-one to fifty-one months. U.S.S.G. Ch. 5, Pt. A (sentencing
table). At the sentencing hearing, Gillespie objected to the
calculated offense level on two grounds. He argued that because
the indictment failed to state a quantity of drugs his offense level
should have corresponded to the smallest amount of cocaine
base recognized by the Guidelines, see U.S.S.G. § 2D1.1(c)(14)
(“less than 250 mg of cocaine base”). Gillespie also objected to
the two-level increase to his offense level for possession of a
dangerous weapon during a drug trafficking offense on the
ground that the facts underlying this increase were not found by
the jury and the jury had acquitted him on that count.
Gillespie’s calculation yielded a total offense level of twelve,
which carried a sentence of ten to sixteen months of
imprisonment, U.S.S.G. Ch. 5, Pt. A (sentencing table).
Gillespie claimed that a downward departure was warranted
4
because his prior felony conviction for forgery of a postal
certificate was a non-violent crime that had been committed
nearly forty years ago and because he was undergoing drug
rehabilitation.
The district court sentenced Gillespie to forty-one months’
imprisonment. Because of the uncertain status of the Sentencing
Guidelines following Blakely v. Washington, 542 U.S. 296
(2004), the district court announced an “alternative sentence” of
forty-one months that it would impose were the mandatory
Guidelines sentencing regime held unconstitutional by the
Supreme Court.
II.
Gillespie contends that his Fifth Amendment rights were
violated when the district court imposed a Guidelines sentence
that was enhanced based on a drug quantity not set forth in the
indictment, and that his Sixth Amendment rights were violated
when the district court enhanced his sentence for possession of
a firearm in the face of his acquittal of possessing a firearm
during a drug trafficking offense. Both contentions are resolved
under this court’s precedent holding that although the district
court may have erred in sentencing under a mandatory
Guidelines regime, the error does not necessarily require
resentencing where the district court has announced an identical
“alternative sentence.”
In Booker, 125 S. Ct. at 746, the Supreme Court held that
the mandatory imposition of enhanced sentences under the
Sentencing Guidelines violated the Sixth Amendment and
accordingly invalidated two statutory provisions that made the
Guidelines mandatory. This court held in United States v.
Simpson, 430 F.3d 1177 (D.C. Cir. 2005), that a sentence
imposed when the Guidelines were still mandatory was free of
5
Booker error because the district court gave alternative
rationales for its sentencing decision. Id. at 1190. In addition to
a rationale for the sentence based on the mandatory Guideline
regime, the district court stated an alternative rationale based on
treating the Guidelines as advisory and taking into consideration
the sentencing factors enumerated in 18 U.S.C. § 3553(a). See
id. at 1184-86. Despite the Booker error in the first rationale for
the sentence it imposed, this court treated the district court’s
alternative, discretionary rationale as sufficient to support the
judgment. See id. at 1185; United States v. Godines, No. 04-
3158, 2006 WL 8466, at *2 (D.C. Cir., Jan. 3, 2006) (Rogers, J.,
concurring).
On the other hand, in United States v. Ayers, 428 F.3d 312,
314-15 (D.C. Cir. 2005), the Government had conceded the
Booker error in the sentence imposed and the court inquired only
whether this error was rendered harmless by the district court’s
announcement of an identical alternative sentence. Id. Under
Ayers, the only question is whether the district court’s
announcement of an identical “alternative sentence” establishes
beyond a reasonable doubt that the Booker error in the
Guidelines sentence was harmless. See id. at 314. In Ayers, the
court stated that “the announcement of an identical alternative
sentence might establish harmless error.” Id. The court
presumed that a district court announcing an alternative non-
Guidelines sentence “ordinarily . . . took into account all the
factors listed in § 3553(a) and accorded them the appropriate
significance.” Id. at 315. It remanded the case for resentencing,
however, because the district court had refused to consider
mitigating evidence, thus rebutting the presumption that the
district court had properly considered the § 3553(a) factors. See
id.
Subsequently, in Godines, 2006 WL 8466 at *2, the court
applied Ayers where the district court had announced an
6
alternative rationale. The court did not explain why Simpson did
not apply. But see id. at *2 (Rogers, J. concurring). Whatever
murkiness there may be in our precedent, it suffices here to
acknowledge that Godines is on point and that the error, if any,
in Gillespie’s sentence is rendered harmless under Ayers. See
Appellee’s Br. at 6. The district court sentenced Gillespie at the
low end of the Guidelines range after discussing the sentencing
factors in § 3553(a) in imposing the mandatory Guidelines
sentence. The district court discussed the nature and
circumstances of the offense as well as Gillespie’s personal
characteristics and history. These factors were noted in the
Presentence Report, which the district court also considered.
Gillespie, unlike the defendant in Ayers, did not proffer
mitigating evidence or seek any further exposition of the district
court’s reasons for the “alternative sentence.” Notably, in
denying Gillespie’s motion for a downward departure, the
district court remarked “[f]rankly, a sentence of 41 to 51 months
for the offense in [Gillespie’s] case . . . doesn’t strike me as
Draconian or as unjust as drug sentences often are.” Although
the district court did not revisit the § 3553(a) sentencing factors
upon announcing the “alternative sentence,” there is no evidence
to suggest that the district court declined to consider the
§3553(a) factors, as in Ayers.
The fact that Gillespie’s announced “alternative sentence”
was the same as his Guidelines sentence does not detract from
the presumption in Ayers, 428 F.3d at 315. Booker left
undisturbed the pre-existing obligation of courts to consider the
§ 3553(a) sentencing factors. See 18 U.S.C. § 3582(a); Simpson,
430 F.3d at 1186. That a sentence derived from the § 3553(a)
factors is identical to a Guidelines sentence should not be
surprising; as the Government notes, the Guidelines were
intended to promote uniformity in the application of the §
3553(a) factors, not to distort them. See Appellee’s Br. 18 n.10.
Where, as here, the record shows the district court’s considered
7
evaluation of § 3553(a) factors, the lack of specific findings
does not mean, this court has concluded, that the district court
failed to appreciate or consider the full range of § 3553(a)
factors in announcing an “alternative sentence.” See Simpson,
430 F.3d at 1186-87. Under the circumstances, the record
therefore indicates that Gillespie suffered no prejudice because
of the Booker error. See United States v. Coles, 403 F.3d 764,
769 (D.C. Cir. 2005).
Because our existing Fifth Amendment precedents indicate
that Gillespie was properly indicted, Gillespie’s Fifth
Amendment challenge fails.1 Gillespie was indicted and
convicted of violating § 841(a)(1) and (b)(1)(C), which together
criminalize the distribution of certain controlled substances
without regard to amount. See United States v. Pettigrew, 346
F.3d 1139, 1142 (D.C. Cir. 2003); United States v. Webb, 255
F.3d 890, 896, 898 (D.C. Cir. 2001). Section 841(b)(1)(C)
contains no threshold drug-quantity requirement and, therefore,
it was not error to indict him for possessing “a detectable
amount” but omit mention of the specific quantity. See United
States v. Lafayette, 337 F.3d 1043, 1048 (D.C. Cir. 2003); Webb,
255 F.3d at 900. The Government concedes that the Fifth
Amendment would preclude the imposition of a mandatory
Guidelines sentence for anything more than the minimum drug
amount where a specific drug amount was not set forth in the
indictment. See Appellee’s Br. 13 n.6; United States v. Johnson,
331 F.3d 962, 968 (D.C. Cir. 2003) (citing Apprendi v. New
Jersey, 530 U.S. 466, 476, 490 (2000)). However, any error in
Gillespie’s mandatory Guidelines sentence was rendered
harmless where, as here, the district court decided that under an
advisory Guidelines scheme it would have sentenced Gillespie
to an identical “alternative sentence.”
1
Booker did not purport to interpret the Fifth Amendment or
to affect prior precedents under it. See 125 S. Ct. at 754 & n.4.
8
Similarly, in an advisory Guidelines regime, no Sixth
Amendment violation arises from the district court’s
consideration at sentencing of Gillespie’s possession of a
firearm. Although he was acquitted of the charge of possessing
a firearm “in relation to” a drug trafficking offense, 18 U.S.C. §
924(c)(1), he was convicted beyond a reasonable doubt of
violating the felon-in-possession of a firearm statute, id. §
922(g).
Accordingly, we affirm the judgment of conviction.