United States v. Lawson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 2, 2007 Decided July 20, 2007

No. 06-3035

UNITED STATES OF AMERICA,
APPELLEE

v.

WILLIAM L. LAWSON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00273-01)

Nikki U. Lotze argued the cause and filed the briefs for
appellant.

John P. Gidez, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese, III, David B. Goodhand, and Kenneth F. Whitted,
Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and GRIFFITH, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2

GRIFFITH, Circuit Judge: Appellant William L. Lawson
challenges his criminal conviction and resulting sentence on
multiple grounds. For the reasons set forth below, we affirm his
conviction but remand the case to the district court for re-
sentencing.

I.

Looking for illegal drug transactions, Officer Darrick
Wallace of the District of Columbia Metropolitan Police
Department parked his unmarked police car at a strip mall on the
5000 block of New Hampshire Avenue, N.W., on the evening of
May 14, 2004. From this observation post, Wallace saw
appellant Lawson drive his car with a passenger into the mall’s
parking lot and park in a spot only a few feet away from
Wallace’s post. With a clear view of the driver’s side of
Lawson’s car, Wallace saw Aubrey Canarte approach the car on
a bicycle and, after a brief conversation, hand Lawson some
money. Lawson reached up towards the sun visor in his car and
retrieved a “small object” that he handed to Canarte, who then
pedaled away. Lawson and his passenger soon drove away as
well, followed by Wallace and two other officers Wallace had
called for assistance. The three officers stopped Lawson’s car
at a traffic circle a short distance away. As he approached the
stopped car, Officer Clayton Smith noticed that Lawson and his
passenger were holding clear plastic cups. Believing them to
contain alcohol, Smith asked Lawson to step out of the car, at
which point Lawson handed Smith the cup. Because the liquid
smelled like alcohol, the officers arrested Lawson and his
passenger for illegal possession of an open container of alcohol.

Smith also saw an open bottle of champagne inside the
vehicle in plain view. While retrieving the bottle, Smith smelled
what he suspected was marijuana coming from the center
 3

console. He opened the console and found inside a .40 caliber
semi-automatic handgun loaded with seven rounds, a large clear
bag holding eight smaller bags containing a total of 11.7 g of
crack cocaine, four clear bags containing 8 ecstasy pills (1.3 g
in total), and three clear bags of marijuana (8.8 g in total).
Smith also found $1,400 in cash on Lawson and another small
clear bag of 1.4 g of crack cocaine in the area near the driver’s
side sun visor. Lawson was charged with unlawful possession
with intent to distribute 5 g or more of crack cocaine, 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(iii); unlawful possession with intent
to distribute marijuana, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D);
unlawful possession with intent to distribute ecstasy, 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C); using, carrying, and possessing a
firearm in furtherance of a drug trafficking offense, 18 U.S.C.
§ 924(c)(1); and because Lawson had a prior felony conviction
for unlawful possession of drugs and guns, unlawful possession
of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1).

At trial, Lawson requested a jury instruction that would
allow the jury to find that possession of the 1.4 g of crack
cocaine found behind the sun visor could be for his personal use
alone while possession of the 11.7 g found in the console was
for distribution. The district court agreed to the instruction but
explained to the jury that it could still convict Lawson of
possession with intent to distribute the smaller amount and could
only convict Lawson of simple possession of this amount if the
government failed to prove beyond a reasonable doubt that
Lawson possessed the larger amount. [See 9/13/05 Tr. at 84,
116-17]. The jury convicted Lawson of (1) possession by a
felon of a firearm, (2) simple possession of the 1.4 g of crack
cocaine, and (3) simple possession of marijuana.1 The jury
acquitted Lawson of using, carrying, and possessing a firearm

1
The last two of these are lesser included offenses of
possession-with-intent-to-distribute charges.
 4

during a drug trafficking offense and of possession with intent
to distribute marijuana or the smaller amount of crack cocaine.
The jury deadlocked on the charges of possession with intent to
distribute the larger amount of crack cocaine and the ecstasy
found in the console. The government dropped these two
charges.

The district court sentenced Lawson to 192 months in
prison: 120 months for possession of the firearm, 12 months for
possession of the marijuana, and 60 months for possession of the
crack cocaine. The court justified the 60-month sentence, which
is well beyond the statutory maximum for possession of 1.4 g of
crack cocaine, by reasoning that even though the jury did not
convict Lawson of possession with intent to distribute the 11.7 g
of crack cocaine, his conviction for possession of the gun and
the marijuana found in the console was a clear indication “that
the jury was concluding that [Lawson] possessed all of the
[crack cocaine found in the car.]” 1/12/06 Tr. at 15. Only a
week later, the district court, sua sponte, announced that it was
reconsidering Lawson’s 60-month sentence because of its
uncertainty as to whether it could impose a sentence that
exceeded the statutory maximum for his possession of the 1.4 g
based upon its determination that he had also possessed the
11.7 g. Later, the court reduced Lawson’s sentence for
possession of the 1.4 g to the statutory maximum of 12 months,
but reiterated its conclusion that, given the way these drugs were
packaged, “the evidence clearly indicated that these drugs
[including the 11.7 g of crack cocaine and the ecstasy] were
possessed with the intent to distribute them.” 2/3/06 Tr. at 4
(emphasis added); see also id. at 6 (“I do believe that the
evidence, by a preponderance, did in fact indicate his
involvement in this offense beyond mere possession.” (emphasis
added)).

On appeal, Lawson challenges his convictions, arguing that
 5

the district court abused its discretion when it excluded allegedly
relevant evidence, erred in instructing the jury to disregard a
portion of his counsel’s closing argument, and demonstrated
unlawful bias against his counsel throughout the trial. Lawson
also argues that the district court violated his Sixth Amendment
right to trial by jury by imposing a sentence based on facts not
found by the jury and that his sentence was unreasonable
because the district court failed to provide a sufficient
justification for imposing a sentence higher than the maximum
recommended by the Sentencing Guidelines (“Guidelines”). We
first address Lawson’s arguments relating to his trial and then
turn to those challenging his sentence.

II.

A. Faulty Photographs of the Re-Created Crime Scene

At trial, Lawson argued that no sale of drugs to Aubrey
Canarte took place. In an effort to show that Officer Wallace
could not have observed the transaction from where he sat in his
car, Lawson attempted to submit into evidence two photographs
that depicted his attempt to re-create the scene. The
photographs showed a car placed in the same spot that Lawson
had occupied and a man on a bicycle in two different positions
relative to the car. The car in the photographs was not
Lawson’s.

The district court refused to admit the photographs into
evidence because, according to Wallace, they did not accurately
represent what he had seen: the bicycle did not appear in the
exact position he had recalled seeing it. The court explained
that the proper way to use a photographic re-creation for trial
would have been to ask the court to “order the officer to go out
and position the bike and the person in a manner consistent with
what he saw.” 9/8/05 Tr. at 104. Lawson’s counsel then asked
 6

Wallace on the stand to draw a picture on the photographs
depicting the car and the bicycle. When Wallace protested that
he was no “artist” and thus felt uncomfortable trying to draw the
scene, the court stopped this line of inquiry. Lawson’s counsel
next attempted to present evidence that Lawson’s car was
unavailable for the photographs because it had been seized in
civil forfeiture, but the court rejected this argument, holding that
once the photographs were excluded, any evidence that the car
had been seized was irrelevant. The court reminded Lawson’s
counsel that the photographs were excluded because they could
not be authenticated by Wallace. The fact that the car was not
Lawson’s was, according to the court, irrelevant. On appeal,
Lawson argues that the court abused its discretion by (i)
excluding the photographs, (ii) prohibiting Lawson’s counsel
from seeking Wallace’s drawn corrections to the photographs,
and (iii) not allowing counsel to present evidence that Lawson’s
car had been taken into police custody.

“This Court reviews a district court’s evidentiary rulings for
abuse of discretion.” United States v. Watson, 409 F.3d 458,
462 (D.C. Cir. 2005). To be admissible, evidence must be
relevant, and its probative value must not be substantially
outweighed by the danger of unfair prejudice or misleading the
jury. See FED. R. EVID. 402, 403. “As a general rule, tangible
evidence such as photographs must be properly identified or
authenticated before being admitted into evidence at trial.”
United States v. Blackwell, 694 F.2d 1325, 1329-30 (D.C. Cir.
1982) (citing FED. R. EVID. 901(a)). A photograph may be
authenticated if a witness with knowledge of the scene testifies
that it accurately depicts the scene it purports to represent. See,
e.g., Am. Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254,
1262 (D.C. Cir. 2003) (citing FED. R. EVID. 901(b)(1)).
Lawson’s proffered photographs were properly excluded from
evidence because they could not be authenticated. According to
the testimony of Wallace—the only witness at trial with
 7

knowledge of the scene—the photographs did not accurately
reflect what he saw. The district court also did not abuse its
discretion in preventing Lawson’s counsel from forcing Wallace
to draw the scene on the photographs. Given Wallace’s own
professed lack of artistic ability, there was a danger that the
potential prejudicial effect of any compelled depiction might
substantially outweigh its probative value. Lawson lacked
relevant, reliable photographs to submit as evidence. He cannot
fault the district court for failing to force Wallace to salvage the
faulty photographs.2 Once the faulty photographs were
excluded, the district court did not abuse its discretion in
preventing Lawson’s counsel from explaining the unavailability
of Lawson’s car to re-create the scene. The civil forfeiture of
Lawson’s car was irrelevant as the obstacle to admissibility
“ha[d] nothing to do with the car.” 9/12/05 Tr. at 78. Any
similar vehicle would have sufficed to stage the re-creation.
Therefore, we find no abuse of discretion by the district court in
its evidentiary rulings.

B. The Missing-Witness Argument to the Jury

In his closing statement to the jury, Lawson’s counsel
argued:

2
Lawson seizes upon some of our language in Henderson v.
George Washington University, 449 F.3d 127 (D.C. Cir. 2006), to
argue that the district court abused its discretion in refusing to permit
his use of the inaccurate photographs. In Henderson, a medical
malpractice case, we held that an official post-surgery medical report
should have been admitted into evidence because it “[went] to the
heart of [the] party’s case and appear[ed] crucial to the outcome of the
case” while “the prejudice to the party opposing admission of the
evidence appear[ed] minimal.” 449 F.3d at 141. But in Henderson,
the improperly excluded official report had been authenticated.
Lawson’s photographs were unauthenticated and therefore
inadmissible.
 8

And when you retire, ladies and gentlemen, to
think about what evidence the government has
and hasn’t presented, I submit to you that you
will find yourself asking a whole bunch of
questions that are completely unanswered by the
government’s evidence. The government hasn’t
presented to you the testimony of Aubrey
Canarte. The government hasn’t presented to
you a single photograph, or a single video, or
anything to suggest that this transaction occurred.
And how do you know, ladies and gentlemen,
that this supposed transaction didn’t occur?

9/13/05 Tr. at 129. A moment later and over objection, the
court, sua sponte, instructed the jury to disregard counsel’s
reference to the government’s failure to call Canarte because it
was, in the court’s view, a “partial missing-witness argument”
that was inappropriate and could not be made without prior
permission from the court. On appeal, Lawson argues that this
instruction was error because his counsel was not making a
missing-witness argument.

A jury may infer that a witness who “potentially ha[s] so
much to offer that one would expect [him] to take the stand” but
is not called would have given testimony harmful to a party that
had “special ability to produce him” at trial. United States v.
Pitts, 918 F.2d 197, 199 (D.C. Cir. 1990). And counsel may
make that argument upon a showing that the opposing party had
such power and failed to use it. See, e.g., United States v.
Young, 463 F.2d 934, 941 (D.C. Cir. 1972) (“Surely it should
not be put to the jury, as either instruction or argument, that an
inference should be drawn from a party’s failure to produce
witnesses if the judge concludes that the party was powerless to
do so.”). Lawson’s counsel could have properly asked the jury
 9

to infer that Canarte would have testified that Lawson sold him
no drugs if she could have shown that the government had a
special ability to produce Canarte to testify at trial. But Lawson
does not dispute that a missing-witness argument would have
been inappropriate. The government had no special ability to
produce Canarte. Lawson could just as easily have called him.
Lawson argues instead that his counsel was not making such an
argument, and we agree.

Lawson was charged with multiple counts of possession-
with-intent-to-distribute illegal drugs. Defending against these
counts, Lawson’s counsel was simply calling into question the
sufficiency of the government’s evidence, a typical and
expected argument for a case like this. It was entirely
reasonable for counsel to point out to the jury the kinds of
evidence that they might have expected to see but did not in a
case to prove that illegal drugs were sold. Emphasizing the lack
of one form of evidence—in this instance, testimony by
Canarte—is not always or necessarily an argument that a
witness not called would have provided testimony harmful to
the prosecution’s case. See, e.g., Burgess v. United States, 440
F.2d 226, 235 (D.C. Cir. 1970) (“[T]he significance of the
absence of a witness is not confined to an inference that if
produced his testimony would be unfavorable to the party who
has the power to produce him.”). Lawson’s counsel did not
even ask the jury to infer, either directly or in a meaningful
indirect manner, that Canarte would have testified against the
government’s case. See United States v. Henson, 486 F.2d
1292, 1298 n.4 (D.C. Cir. 1973) (holding that a party did not
make a missing-witness argument because “[t]he remarks did
not directly, or in a meaningful indirect manner, ask the jury to
draw an impermissible inference from [a witness’s] absence”).
Counsel was making a permissible argument based on absence
of evidence that the government had failed to prove that Lawson
sold illegal drugs. The district court should not have instructed
 10

the jury to disregard this argument.

But not every error during a trial requires reversal of a
conviction. In fact, “[a]ny error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.”
FED. R. CRIM. P. 52(a); see United States v. Olano, 507 U.S.
725, 731 (1993). An error affecting “substantial rights” must
have a “substantial and injurious effect or influence in
determining the . . . verdict.” United States v. Dominguez
Benitez, 542 U.S. 74, 81 (2004) (quoting Kotteakos v. United
States, 328 U.S. 750, 766 (1946)). The district court’s error did
not have such an effect or influence. The jury failed to convict
Lawson of selling drugs. Each of his drug convictions was for
possession alone. The argument his counsel was forbidden to
make went only to the distribution charges. Had counsel been
allowed to make her full argument about Canarte’s failure to
testify, the jury could have at most inferred that Lawson had not
sold him drugs, which would have left virtually untouched the
government’s substantial case against Lawson for unlawful
possession of illegal drugs. It is highly unlikely that the jury
would have struggled over Lawson’s possession charges
because of the government’s failure to call Canarte to the stand.

C. The District Court’s Alleged Bias Against Lawson

Lawson also makes an overarching claim that the district
court “demonstrated bias against counsel that deprived [Lawson]
of his constitutional right to a fair and impartial trial.”
Appellant’s Br. at 37. He points to instances of allegedly unfair
evidentiary rulings, see id. at 39, unfair jury instructions, see id.
at 39-40, unfair sua sponte questioning of witnesses, see id. at
41, “result-oriented reasoning” in imposing an unreasonable
sentence, id., and critical remarks by the judge against his
counsel and her techniques, see id. at 43.
 11

Lawson’s argument of bias is similar to the one made in
United States v. Donato, 99 F.3d 426 (D.C. Cir. 1996), where
we explained:

[A] district judge has wide discretion in
monitoring the flow of a criminal trial. It is well
within her discretion to rebuke an attorney,
sometimes harshly, when that attorney asks
inappropriate questions, ignores the court’s
instructions, or otherwise engages in improper or
delaying behavior. Sharp words spoken by a
trial court to counsel do not by themselves
establish impermissible bias. There is a modicum
of quick temper that must be allowed even
judges.

Id. at 434 (citations and quotation marks omitted).
Notwithstanding this deference, in Donato we reversed the
appellant’s criminal conviction because “the negative
comments . . . were more concentrated, frequent, and critical
than [in other cases]” and “the relative brevity of [the] trial
ma[de] it more likely that the judge’s negative comments
colored the entire trial.” Id. at 435.

We have reviewed the record with Donato in mind, and
have some cause for concern. The interactions between the
court and Lawson’s counsel in this three-day trial were
frequently on less-than-friendly terms. Yet, we do not believe
that the court’s conduct warrants either reversal or a retrial.
Lawson fails to demonstrate any harm from the exchanges
between the court and his counsel. The court took care to
instruct the jury not to take its comments or remarks to counsel
as any indication of its opinion of the merits or its view of the
facts. See 9/8/05 Tr. at 128. It is also significant that the court’s
comments were directed at Lawson’s counsel and not at him or
 12

his witnesses. See United States v. Clark, 184 F.3d 858, 869
(D.C. Cir. 1999) (considering a mistrial claim and giving weight
to the fact that “the court’s comments were directed at the
attorneys, not at defendant or his witnesses” (citing Donato, 99
F.3d at 437-38; United States v. Edmond, 52 F.3d 1080, 1101-02
(D.C. Cir.1995))). And many of the comments Lawson cites
were made at the bench (inaudible to the jurors) or while the
jury was not in the courtroom. See, e.g., 9/8/05 Tr. at 51-54,
103-04; 9/13/05 Tr. at 121-23.

Furthermore, it is likely that Lawson’s counsel bears some
responsibility for the court’s reactions. In most of the exchanges
cited by Lawson, the court correctly ruled that counsel had
failed to properly frame her questions. At times, counsel’s
manner of introducing evidence did not manifest its relevance,
either immediately or even after further questioning. See, e.g.,
9/8/05 Tr. at 43-54, 102-111. Counsel made arguments in front
of the jury that were at least confusing to the jury and the judge,
see, e.g., 9/13/05 Tr. at 121-23, and arguably inappropriate, see,
e.g., id. at 129-35. Counsel interrupted the judge on a number
of occasions, see, e.g., id. at 154.

Finally, we again note that despite the packaging and the
amount of the drugs found in Lawson’s car, the jury did not
convict Lawson of any possession-with-intent-to-distribute
charges. Therefore, although the court’s remarks were
occasionally harsh and the exchanges with counsel less than
ideal, Lawson has not demonstrated that, under the
circumstances, these remarks had such a distorting influence on
the jury’s determinations as to warrant a reversal of Lawson’s
conviction or to require a retrial.

Having affirmed Lawson’s conviction, we now review his
sentence.
 13

III.

A. The Booker Argument

Lawson argues that the district court violated his Sixth
Amendment right to trial by jury under United States v. Booker,
543 U.S. 220 (2005), by imposing a sentence higher than the
maximum provided for by the Guidelines based on facts not
found by the jury. His argument is flawed in at least two ways.

First, Lawson argues that the district court could not
lawfully impose a sentence higher than the maximum
Guidelines sentence. This argument is plainly wrong. Under
Booker, the Guidelines are advisory, not mandatory, see id. at
245 (excising the statutes that make the Guidelines mandatory).
No Sixth Amendment issue is raised unless a sentence exceeds
its statutory maximum. See id. at 244 (“Any 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.”
(citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000))).

Second, Lawson argues that the district court could not
lawfully enhance his sentence beyond the recommended
maximum Guidelines sentence based on conduct for which he
was not convicted—in this case, possession of the larger amount
of crack cocaine found in the console.3 However, as we have
discussed above, the district court determined that although the

3
Lawson argues in effect that the district court could not
lawfully extend his sentence beyond 37 months. However, as we
discuss in Section III.B, infra, Lawson’s counsel was actually
mistaken in believing that the properly calculated Guidelines range for
Lawson’s case was 30-37 months. It is 110-137 months.
 14

jury failed to convict Lawson of an intent to distribute the crack
cocaine found in the console, the government nonetheless
proved by a preponderance of the evidence that Lawson
possessed all of the drugs found in the car (including the larger
amount of crack cocaine and the ecstasy pills) with an intent to
distribute, and took this finding into account in calculating his
sentence.

We have recently considered whether a sentence based on
unconvicted conduct violates the Sixth Amendment. In United
States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006), the appellant
was convicted of making a false statement to the Federal Bureau
of Investigation but was acquitted of two related conspiracy
charges. See id. at 369. Although the recommended Guidelines
range for the appellant’s conviction was only 0-6 months, the
district court, finding by a preponderance of evidence that the
appellant was in fact involved in the conspiracies, sentenced
him to 24 months. See id. Reading the Supreme Court’s
language in Booker as providing the sentencing court with
discretion “broad enough to allow consideration of acquitted
conduct so long as the court ‘deems [it] relevant,’” id. at 371
(alteration in original), we held that “a sentencing court may
base a sentence on acquitted conduct without offending the
defendant’s Sixth Amendment right to trial by jury.” Id. Thus,
we held that “consideration of acquitted conduct violated the
Sixth Amendment only if the judge imposes a sentence that
exceeds what the jury verdict authorizes.” Id. at 371 (citing
Booker, 542 U.S. at 244). In affirming the appellant’s sentence,
we joined five other circuits that had considered this question.
See id. If it is permissible for a sentencing court to build a
sentence, at least in part, on conduct for which a defendant is
charged but acquitted, we find no error in relying on conduct for
which Lawson was charged but on which the jury deadlocked,
provided, as here, the court determined by a preponderance of
the evidence that he engaged in the conduct.
 15

B. The Reasonableness of the Sentence

Lawson also argues that his 144-month sentence is nearly
four times greater than the maximum Guidelines sentence for
the three crimes for which he was convicted and that the district
court failed to provide a reasonable basis that would support this
seemingly draconian upward deviation, relying instead on
factors already included within the Guidelines calculations. We
have reviewed the Presentence Investigation Report and the
transcripts from the two sentencing hearings the district court
convened. Because it is not clear from the record whether the
district court in fact considered the appropriate Guidelines range
for Lawson’s crimes and his misconduct—a necessary threshold
inquiry for our reasonableness review—we conclude that we
cannot determine whether the sentence is reasonable or not. In
the absence of a clear explanation of how the district court
arrived at his sentence, we cannot address Lawson’s arguments
that the sentence is unreasonable, and we therefore remand the
case to the district court for re-sentencing.

Because “a sentence within a properly calculated
Guidelines range is entitled to a rebuttable presumption of
reasonableness,” Dorcely, 454 F.3d at 376 (citations omitted);
see also Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d
203, 211 (2007) (holding that “a court of appeals may apply a
presumption of reasonableness to a sentence that reflects a
proper application of the [Guidelines]”), we begin our review by
considering whether the sentencing court started its analysis
from a properly calculated Guidelines range. See Dorcely, 454
F.3d at 375 (“In the post-Booker world, the [sentencing] court
must calculate and consider the applicable Guidelines range but
is not bound by it.”); 18 U.S.C. § 3742(f) (“If the court of
appeals determines that . . . the sentence was . . . imposed as a
result of an incorrect application of the sentencing guidelines,
 16

the court shall remand the case for further sentencing
proceedings with such instructions as the court considers
appropriate.”). If it did, we then review the sentence ultimately
imposed “to ensure that it is reasonable 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); Booker, 543
U.S. at 261 (“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.”);4 see also
United States v. Olivares, 473 F.3d 1224, 1226 (D.C. Cir. 2006)
(explaining that the court must determine that the Guidelines
were correctly applied before it can review the reasonableness
of the sentence in light of § 3553(a) factors).

With respect to Lawson’s sentence, the Presentence
Investigation Report prepared by the Probation Officer for the
sentencing court initially recommended a Guidelines range of
110-137 months, based in part on the Report’s conclusion that

4
Section 3553(a) lists, inter alia, the following factors
relevant to Lawson’s sentence:

the nature and circumstances of the offense and the
history and characteristics of the defendant . . . , the
need for the sentence imposed . . . to reflect the
seriousness of the offense, to promote respect for the
law, and to provide just punishment for the
offense . . . , to afford adequate deterrence to criminal
conduct . . . , to protect the public from further crimes
of the defendant . . . , and to provide the defendant
with needed educational or vocational training,
medical care, or other correctional treatment in the
most effective manner . . . , the kinds of sentences
available . . ., [and] the need to provide restitution to
any victims of the offense.
 17

the “jury found Mr. Lawson responsible for the [11.7 g of]
cocaine base recovered from within the console.” Joint
Appendix at 64. When Lawson challenged this calculation on
the ground that he was only convicted of possessing the 1.4 g of
crack cocaine and not the larger volume, the Probation Officer
prepared an addendum to the Report that included an alternative
calculation of Lawson’s sentence, which did not include the
11.7 g. Id. at 64-65. The recommended range for Lawson’s
sentence under this second calculation was only 30-37 months.
Id. at 65. At the final sentencing hearing, the district court
nonetheless concluded that a preponderance of the evidence
clearly established that Lawson possessed all the drugs found in
Lawson’s car with an intent to distribute.

This conclusion affects the applicable Guidelines range.
The proper Guidelines calculations need not be limited to the
charges for which the defendant has been convicted. They
should include the relevant factors specified in the Guidelines
and may include conduct for which the defendant was charged
and but not convicted if it appears by a preponderance of the
evidence that he engaged in the conduct. See, e.g., United States
v. Long, 328 F.3d 655, 670 (D.C. Cir. 2003) (holding that the
preponderance of the evidence standard applies to calculating
the proper Guidelines range (citing McMillan v. Pennsylvania,
477 U.S. 79, 91-92 (1986))); see also U.S.S.G. § 1B1.3, cmt.
background (2006) (“Conduct that is not formally charged or is
not an element of the offense of conviction may enter into the
determination of the applicable guideline sentencing range . . . .
Relying on the entire range of conduct . . . appears to be the
most reasonable approach to writing workable guidelines for
these offenses.”). In other words, where the court finds by a
preponderance of evidence that the defendant was engaged in
the conduct for which he was charged, this finding becomes a
factor in determining the properly calculated Guidelines range.
See, e.g., United States v. Boney, 977 F.2d 624, 644-45 (D.C.
 18

Cir. 1992) (where defendant was convicted of distribution of
0.199 g of crack cocaine but was acquitted of possessing 12.72 g
of additional crack cocaine found underneath his pickup truck,
the district court, upon finding defendant guilty by a
preponderance of evidence, could properly include the 12.72 g
of crack cocaine charge in calculating the Guidelines range).
We have previously found this approach to be constitutionally
permissible. See id.; see also Long, 328 F.3d at 670.

Based on our review of the record, we believe that the
district court should have figured Lawson’s possession of the
11.7 g of crack cocaine into its calculation of the appropriate
Guidelines range from which it could then determine a
reasonable sentence.5 In fact, the district court noted this
possibility at Lawson’s first sentencing hearing:

[Lawson’s other conduct] can be factored into
what the Guidelines calculation is because even
though he may not be found guilty, if I conclude
that there are circumstances that, nonetheless,
show that he did possess the other drugs, by a
preponderance standard, that still can be used in
the calculation.

1/12/06 Tr. at 6. We have not, however, been able to find
anywhere in the record where the sentencing court stated or even
implied that it used a Guidelines range that took into account

5
Our discussion focuses solely on Lawson’s possession with
intent to distribute crack cocaine. Although the district court also
concluded that he intended to distribute the other drugs in the car,
Lawson’s possession of those drugs would not affect a Guidelines
calculation that had already taken into account the amount of crack
cocaine found in his car. See Joint Appendix at 21; see also U.S.S.G.
§ 2D1.1, § 3D1.2(d), § 3D1.3, § 3D1.4.
 19

Lawson’s possession of the 11.7 g. Had it done so, the
recommended Guidelines range for Lawson’s sentence would
increase from 30-37 months to 110-137 months, as the Probation
Officer had initially calculated. With that range as the starting
point for its analysis, the court should have then considered
whether the § 3553(a) factors warrant a sentence either within
or outside this range.

Unfortunately, the record is muddled as to whether the
district court considered this starting point for its analysis. If
pressed, we would be forced to determine on an inconclusive
record that the district court used the 30-37 month range of the
Report’s addendum as the stepping off point for its analysis. In
objecting to the sentence, Lawson’s counsel noted that the base
offense level should have been 14, which corresponds to a
sentence range of 30-37 months. See 2/3/06 Tr. at 3-4. The
court did not counter this argument by noting that his base
offense level should have been 28 based on his possession of the
additional 11.7 g of crack cocaine, which is consistent with a
Guidelines range of 110-137 months. Instead, the court merely
noted that “the Guidelines aren’t mandatory” and that “the
Guidelines, as calculated, don’t accurately reflect the
seriousness of the conduct [Lawson] was convicted of.” 2/3/06
Tr. at 4. But we will not determine the reasonableness of a
prison sentence on such speculation. Without knowing the point
at which the sentencing court began its calculation, we cannot
address Lawson’s argument that his was unreasonable. We
therefore remand this matter to the district court to explain from
which Guidelines range it began its calculation, and only then,
see, e.g., Dorcely, 454 F.3d at 375, can we determine whether
the § 3553(a) factors invoked by the court reasonably justify the
sentence ultimately imposed. See, e.g., United States v.
Simpson, 430 F.3d 1177, 1187 n.10 (D.C. Cir. 2005) (“[T]he
farther the judge’s sentence departs from the guidelines
sentence . . . , the more compelling the justification based on
 20

factors in section 3553(a) that the judge must offer in order to
enable the court of appeals to assess the reasonableness of the
sentence imposed.” (quoting United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005))).

III.

For the foregoing reasons, we affirm Lawson’s conviction
on all grounds, but vacate Lawson’s sentence and remand the
case to the district court to make explicit the applicable
Guidelines range and how its consideration of the required
factors under § 3553(a) affected its departure from or adherence
to that range.

So ordered.