United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 27, 2006 Decided February 23, 2007
No. 06-3012
UNITED STATES OF AMERICA,
APPELLEE
v.
TALIB D. WATSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00314-01)
Stacy D. Belf argued the cause for appellant. With her on
the briefs were Peter M. Brody and Kevin J. Post.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Roy W. McLeese III and D. Ames Jeffress, Assistant U.S.
Attorneys.
Before: GINSBURG, Chief Judge, and SENTELLE and
TATEL, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
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GINSBURG, Chief Judge: A jury found Talib D. Watson
guilty of being a felon in possession of a firearm and of
possession of marijuana. The United States Sentencing
Guidelines, which at that time were thought to be mandatory,
called for the district court to increase Watson’s sentence
above what it would have been for those crimes alone because
of his prior convictions. Watson appealed and this court
remanded the matter to the district court for sentencing de
novo in light of the intervening decision of the Supreme Court
in United States v. Booker, 543 U.S. 220 (2005) (holding that
because enhancement of sentence, pursuant to mandatory
sentencing guidelines, based upon facts not submitted to jury
would violate defendant’s right to trial by jury, Guidelines are
advisory only). The district court adhered to its prior sentence
and Watson appealed again, arguing the district court (1)
failed to sentence him de novo, (2) misunderstood the
maximum sentence and as a result did not give Watson
adequate credit for mitigating factors, as required by 18
U.S.C. § 3553(a), and, (3) by relying upon conduct of which
he was acquitted in prior cases, violated Watson’s
constitutional rights to trial by jury and to due process.
In resentencing Watson the district court plainly erred in
thinking the statutory maximum to which he could be
sentenced was 20 years when in fact it was 10 years. As a
result, the court was under the misimpression it was imposing
a relatively lenient sentence, presumably in order to take into
account certain mitigating factors. Because the mistake
affected Watson’s substantial rights, we reverse his sentence
and, without reaching his other arguments, remand the matter
to the district court for resentencing.
I. Background
The facts surrounding Watson’s trial and conviction are
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fully recounted in our decision affirming his conviction and
remanding the case for resentencing in light of Booker. See
United States v. Watson, 409 F.3d 458, 460 (D.C. Cir. 2005)
(Watson I). In brief, police officers stopped Watson because
the windows of the car he was driving were “tinted
excessively.” Id. at 460. When the police determined there
was an outstanding warrant for his arrest, they took him into
custody and searched the car. Id. There they found a semi-
automatic handgun, a pistol, ammunition, and marijuana. Id.
Watson was indicted for being a felon in possession of
firearms and ammunition, and for possession of marijuana.
Id. at 461. A jury found him guilty of the firearms and drug
offenses but acquitted him on the ammunition charge. Id. at
462.
In its Presentence Investigative Report (PSR) the
Probation Office determined the sentencing range under the
Guidelines was from 92 to 115 months of imprisonment,
based upon the instant firearms and drug convictions and
upon Watson’s prior convictions and criminal history,
including charges of which Watson was acquitted. In its
sentencing memorandum, the Government urged the court to
impose the maximum sentence of 115 months, arguing that, in
addition to Watson’s prior convictions, the prior prosecutions
in which Watson was acquitted “demonstrated ‘his obvious
recalcitrance to rehabilitation.’”
At sentencing, Watson argued the court’s proposed
reliance upon his prior convictions and upon charges of which
he was acquitted was inconsistent with the Supreme Court’s
then recent decision in Blakely v. Washington, 542 U.S. 296
(2004), which held that the jury — not the judge — must find
any fact to be used in a scheme of state sentencing guidelines
to increase a defendant’s sentence beyond the statutory
maximum. Blakely thereby extended the reach of Apprendi v.
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New Jersey, 530 U.S. 466 (2000), a non–guidelines case
holding that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt,” id. at 490. Watson
also asked that his sentence be made to run concurrently with
the sentence imposed in D.C. Superior Court for violating the
terms of his probation by engaging in the conduct for which
he was convicted in this case. The district court rejected
Watson’s Blakely argument because the principle laid down in
Apprendi had not yet been held applicable to the United States
Sentencing Guidelines; sentenced Watson to 108 months in
prison; and declined to make Watson’s sentence concurrent
with his Superior Court sentence.
After this court affirmed Watson’s conviction but
remanded his sentence for reconsideration in light of Booker,
see Watson I, 409 F.3d at 466, the district court ordered the
parties to submit supplemental memoranda addressing the
sentencing factors enumerated in 18 U.S.C. § 3553, and said it
would schedule a sentencing hearing based upon those
memoranda “if necessary.” The district court later scheduled
a “status conference” after Watson — apparently concerned
there might be no sentencing hearing — filed a Motion for
Sentencing De Novo and Request for Hearing.
In his memorandum and at the status conference Watson
argued his sentence could not be enhanced upon the basis of
findings about his criminal history made by the judge rather
than the jury. Watson also argued his willingness to admit to
drug addiction and to seek treatment were mitigating factors
that had to be considered under § 3553(a).
The district court clarified, when asked by Watson’s
counsel, that the status conference was indeed the sentencing
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hearing and that the court would grant Watson’s motion for
sentencing de novo. The parties presented their arguments
concerning the appropriate sentence, after which the court
said that, because the Guidelines were no longer mandatory,
there was no need to determine the applicable Guidelines
range, but added, “If I were going to make [such a finding], it
would be the same guidelines range ....” The court also stated
— incorrectly — that the maximum sentence under the statute
was 240 months when, in fact, it was — as the Government
now concedes — only 120 months. The court
understandably, therefore, characterized Watson’s 108-month
sentence as being “considerably less than the statutorily-
available sentencing maximum.” The court also alluded to
the two prior cases, each more than a decade earlier, in which
Watson was ultimately acquitted as reflecting a “lengthy
career” in the “criminal justice system”: “There were close
calls, very serious offenses for which you were tried and
acquitted in two cases. And I didn’t focus my [original
sentence] back then completely on those. Obviously I took
them into consideration.” Finally, the court recognized
Watson had since his conviction sought drug treatment and
improved his behavior in prison: “I am ... pleased to hear that
you’ve been changing and making adjustments or whatever.”
The district court rejected Watson’s arguments against
considering charged conduct of which he had been acquitted,
and imposed a sentence of the same length as his original
sentence (108 months), again consecutive to Watson’s
sentence in Superior Court for violating the terms of his
probation. Watson again appeals his sentence.
II. Analysis
This court reviews de novo issues of law related to
sentencing. United States v. Dorcely, 454 F.3d 366, 375
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(D.C. Cir. 2006). Under Booker, we also review the sentence
itself for reasonableness, 543 U.S. at 260-61, “in light of the
sentencing factors that Congress specified in 18 U.S.C.
§ 3553(a).” United States v. Price, 409 F.3d 436, 442 (D.C.
Cir. 2005). And, as we recently held, a sentence within “a
properly calculated Guidelines range is entitled to a rebuttable
presumption of reasonableness.” Dorcely, 454 F.3d at 376;
accord United States v. Rita, 177 F. App’x 357, 2006 WL
1144508, at *1 (4th Cir. 2006), cert. granted, 127 S. Ct. 551
(2006) (No. 06-5754); United States v. Claiborne, 439 F.3d
479 (8th Cir. 2006) (holding sentence 22-months below
Guidelines range unreasonable), cert. granted, 127 S. Ct. 551
(2006) (No. 06-5618).
A. A Hearing by Any Other Name
Watson first argues the district court failed to sentence
him de novo, as required by our decision in Watson I. This
argument is ultimately based upon the district court’s having
first denominated the hearing a “status conference” and
having initially told Watson’s counsel the proceeding would
not include his resentencing.
This terminological objection is of no substantive
moment: The parties had submitted supplemental sentencing
memoranda analyzing the § 3553(a) factors, and when
Watson’s counsel asked whether the hearing was for
sentencing and was told it was and that the court would grant
his motion for sentencing de novo, she expressed no
reservation about going forward. The defendant was clearly
prepared to argue the matter and did so. In substance, the
proceeding, whatever it was called, was a sentencing hearing
at which the district court sentenced Watson de novo.
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B. The Case of the Mistaken Maximum
In the course of resentencing Watson, the district court
stated, incorrectly, that Watson was subject to a statutory
maximum sentence of 240 months. In fact, the maximum
under the felon-in-possession statute was 120 months. See 18
U.S.C. § 924(a)(2). Watson contends this mistake led the
district court to conclude his sentence of 108 months was, as
the district court put it, “considerably less than the statutorily-
available sentencing maximum.” The Government responds
that Watson’s failure to disabuse the district court — indeed,
counsel expressed agreement with the court’s misstatement of
the maximum — makes the error “subject to review for plain
error, if at all.” Further, the Government contends, the error
“did not substantially affect the court’s choice of sentence
within the recommended sentencing range,” and therefore was
not prejudicial.
We agree with the Government in part: Because counsel
for Watson did not object, we will review the record only for
plain error. FED. R. CRIM. P. 52(b). Under this standard,
“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) (internal quotation marks and citation omitted);
cf. FED. R. CRIM. P. 52(a) (error harmless if it “does not affect
substantial rights”). “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 affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.” Johnson, 520 U.S. at 467 (internal quotation
marks and citations omitted).
In this case there was an error, it was plain, and we have
no trouble seeing its effect upon Watson’s substantial rights:
The district court’s misimpression that a sentence of 108
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months was “considerably less than the statutorily-available
sentencing maximum” was apparently the basis upon which
the court suggested it had taken the relevant mitigating factors
into account and was imposing a significantly lesser sentence.
Thus, it appears there might have been a “materially different
result, more favorable to the defendant,” United States v.
Coles, 403 F.3d 764, 767 (D.C. Cir. 2005), had the district
court had the proper sentencing range — either the 115-month
Guidelines maximum or the 120-month statutory maximum
— rather than the supposed 240-month statutory maximum as
its frame of reference. In short, it appears the district court
thought it was imposing a sentence “considerably less” than,
but instead imposed a sentence quite close to, the maximum.
We conclude the district court’s erroneous premise gave
it the mistaken impression it was being lenient and the error
thus infected Watson’s sentence. Cf. 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)).
We therefore reverse Watson’s sentence.
C. The Roads Not Taken
As we have seen, the district court did not make a finding
regarding the advisory Guidelines range applicable to
Watson’s sentence. The Government concedes this was a
mistake. See, e.g., United States v. Coumaris, 399 F.3d 343,
351 (D.C. Cir. 2005) (under post-Booker sentencing regime,
“a sentencing court is required ‘to consider Guidelines ranges’
applicable to the defendant” (quoting Booker, 543 U.S. at
245)). Because, as seen in Part II.B above, we reverse and
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remand for the district court to correct a plain error, we need
not decide the effect (if any) this error had upon Watson’s
sentence.
Nor need we resolve the issue raised by the district
court’s reliance upon the defendant’s acquitted conduct. In
Dorcely, upon which the Government relies, we upheld a
sentence enhanced by the judge applying the “preponderance
of the evidence” standard to acquitted conduct. In that case,
however, the sentencing judge had presided over the trial and
thus seen and heard the evidence supporting the charges of
which the defendant was acquitted by the jury pursuant to the
standard of guilt “beyond a reasonable doubt.” 454 F.3d at
370-71. In this case the sentencing judge did not preside over
the defendant’s prior trials; indeed, as far as the record
reveals, the judge had not seen any evidence introduced to
prove the charges of which the defendant had been acquitted
in prior cases. Upon resentencing, we trust the district court
will explore the significance of this distinction.
III. Conclusion
The defendant was duly resentenced de novo, but the
district court’s error concerning the statutory maximum gave
the court the misimpression it was being lenient. The error
was plain and, because it apparently affected the sentence,
was prejudicial. Accordingly, the judgment of the district
court is reversed and the case is remanded for resentencing.
So ordered.