United States v. Branham

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2007 Decided February 15, 2008

No. 04-3086

UNITED STATES OF AMERICA,
APPELLEE

v.

DELJUAN BRANHAM,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03cr00285-01)

A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.

Mary Chris Dobbie, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and Roy W. McLeese, III and Elizabeth Trosman,
Assistant U.S. Attorneys.

Before: GARLAND and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
 2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A jury found Deljuan Branham
guilty of possession with intent to distribute 100 grams or more
of a mixture or substance containing phencyclidine (PCP), in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iv). Branham
contends that his conviction should be reversed because the
government’s evidence was insufficient to support it and
because the district court improperly admitted expert testimony
against him. For the reasons set forth below, we reject those
arguments and affirm the conviction.

Branham further contends that, if we do not reverse his
conviction, we should remand for resentencing in light of the
changes to Guidelines sentencing wrought by United States v.
Booker, 543 U.S. 220 (2005). The government agrees that a
remand is required but suggests that we order only a limited
remand, pursuant to United States v. Coles, 403 F.3d 764 (D.C.
Cir. 2005), to determine whether the district court “would have
imposed a different sentence materially more favorable to the
defendant had it been fully aware of the post-Booker sentencing
regime.” Id. at 770. Although we ordinarily would order a
Coles remand, in this case the district judge who sentenced
Branham has retired and hence is no longer available to answer
the Coles question. A remand for resentencing in light of
Booker is therefore the appropriate disposition.

I

The evidence that the government presented at trial was as
follows. United States Postal Inspector Joseph Okronley
testified that, on June 5, 2003, he examined a suspicious express
mail package at the Baltimore-Washington International Airport
mail facility. He regarded the package as suspicious because the
handwritten label stated that the sender was a “Jhonson” who
 3

lived on “West Jhonson Street” in Compton, California.
Okronley brought the package to the attention of Inspector
Sherwin Green, who contacted the Compton post office and
discovered that the address did not exist. Green then contacted
the letter carrier for the addressee -- a “Babbra Rice” at
Apartment 52, 2325 15th Street, N.W., Washington, D.C. The
carrier advised Green that the building at that address had three-
rather than two-digit apartment numbers, that he did not
recognize the addressee’s name, and that “there was drug
distribution going on” in apartment 301 of the building. Trial
Tr. 66-67, 129 (Mar. 10, 2004).

Inspector Okronley arranged to have a drug dog sniff the
package, and the dog alerted. After obtaining a search warrant,
the inspectors opened the package and found a can containing 32
ounces of liquid PCP sealed inside a vacuum-wrapped plastic
bag. A drug expert testified that the wholesale price of a 32-
ounce bottle on the West Coast was $7,000 to $8,000, and that
the street value of that amount of PCP was roughly $38,000. A
DEA chemist determined that one ounce of the liquid in the
bottle contained 26.6 grams of PCP.

Green testified that, on June 6, 2003, he and officers of the
Metropolitan Police Department (MPD) set up a controlled
delivery of the package. Wearing a mail carrier’s uniform and
driving a mail truck, Green parked in front of the building on
15th Street and pretended to be busy with work inside the truck.
A few minutes later, defendant Deljuan Branham called to
Green from the doorway of the building and asked if he was
coming inside. Green approached and responded that he had a
package for apartment 52, but that there was no such apartment
in the building. Branham then asked if the package was for
Barbara Wrice. Branham said that Wrice was his aunt, that she
lived in apartment 512, and that she had “been calling the post
office all day trying to get this package.” Trial Tr. 86 (Mar. 10,
 4

2004). Green testified that he knew Wrice had not been calling
the post office because he had asked the post office to contact
him on his cell phone if anyone inquired about the package, and
there had been no call.

Green further testified that Branham appeared “anxious to
get the package.” Id. at 87. He repeatedly asked Green if he
could take the package and told Green that Wrice had sent him
down to the lobby to get it for her. Green told Branham that he
had to deliver the package to apartment 512 and that he would
need to see Branham’s identification. Branham told Green that
he had a key to the apartment and suggested that they go upstairs
together; Green agreed and went to the truck to get the package.
While Green was gone, Sergeant Darrell Johnson of the MPD,
dressed in plain clothes, approached the building. He pretended
that he was there to visit a female resident, and Branham let him
into the lobby.

When Green returned from the truck with the package, he
changed the plan and asked Branham to bring his identification
and the apartment key down to the lobby instead. Branham
agreed, and a few minutes later came back to the lobby and
showed Green the key and his ID. Green handed him a postal
delivery form to fill out. According to Green, Branham
appeared nervous as he filled out the form. He wrote down an
incorrect street address and signed a name -- “Wessaria
Branham” -- that did not match his identification, although
Wrice later testified that she called him “Wes.”

After Branham completed the paperwork, Green handed
him the package and gave Sergeant Johnson a signal to take
Branham into custody. Johnson then approached, identified
himself as a police officer, and told Branham that he was under
arrest. Branham resisted, but he was ultimately restrained and
apprehended.
 5

After the arrest, other MPD officers conducted a search of
Wrice’s apartment with her consent. MPD Detective James
Zerega testified that Wrice was in the bedroom and appeared to
be bedridden. Two men were also in the apartment. One came
out of the bathroom as the police entered; the other was in the
living room. One of the men had $2,386 in cash on him. The
officers found two vials of PCP in the freezer, two ziploc bags
of marijuana on the grass beneath the open bathroom window,
and a supply of empty ziploc bags on the kitchen table matching
those containing the marijuana. Zerega testified that marijuana
and PCP were often used “in tandem,” Trial Tr. 126 (Mar. 12,
2004), although the government’s drug expert testified that he
had not seen “a whole lot of PCP on marijuana” in recent years,
Trial Tr. 113 (Mar. 11, 2004 (PM)).

At trial, Wrice testified that she suffered from numerous
disabling afflictions. She said that the PCP in the freezer was
not hers, that she had never ordered PCP, and that she did not
know it was in the apartment. She said that she had known
Branham for about ten years, that she thought he lived in
apartment 301 of her building, that he was like a friend or
nephew to her, that he often came over to keep her company or
help with errands, that he picked up her mail for her on
occasion, and that he and the other two men were friends who
would sit in her front room and talk for hours. She testified that
she was not expecting a package on June 6, 2003, and did not
know anyone in California. On direct examination, Wrice
testified that she did not know if Branham had asked if he could
get her mail that day or if she had asked him to do so. On cross-
examination, she testified that she had asked him.

On redirect examination, however, the government
established that Wrice told the grand jury that Branham had
asked to go to the mailbox for her because he was expecting a
package, and that he had previously received two or three
 6

packages at her address. Detective Zerega also testified that he
had taken Wrice’s statement immediately after Branham’s
arrest, and that she told him that, an hour before the arrest,
Branham had asked her for her mail key because he “‘was
waiting for a package to come to [her] address.’” Trial Tr. 54
(Mar. 12, 2004). She further told Zerega that Branham lived in
apartment 301. Both the statement to Zerega and the grand jury
testimony were entered into evidence.

Branham did not testify. His defense consisted of the
testimony of three witnesses. The building’s resident manager
testified that Branham did not actually live in the building but
that he visited often. He further testified that he had never seen
anyone sell drugs in or around the building. The defense also
called a witness who testified that he was in the lobby at the
time of Branham’s arrest, and that he never saw the postal
carrier give Branham the package. Finally, Branham called Paul
Wetzel, who had moved into apartment 301 in October 2003,
after the events in question. Wetzel was called to rebut
testimony by an MPD officer that Wetzel had told him people
knocked on his door late at night, asking for “Deljuan” and
“Wesley.” Wetzel testified that he was unable to recall what
names the people who knocked on his door had mentioned, and
merely told the officers that Deljuan and Wesley “sounded
familiar” when the officers mentioned those names. Trial Tr.
58-59 (Mar. 15, 2004 (AM)).

On March 16, 2004, after a four-day trial, the jury found
Branham guilty of possession with intent to distribute 100 grams
or more of a mixture or substance containing PCP, an offense
that carries a statutory mandatory minimum sentence of 5 years’
imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iv); Presentence
Investigation Report (PSR) ¶ 59. The sentencing range under
the United States Sentencing Guidelines was 121-151 months.
PSR ¶ 60. On June 24, 2004, the district court sentenced
 7

Branham to 132 months. Since the date of sentencing,
Branham’s sentencing judge has retired from the bench.
Branham now appeals both his conviction and his sentence.

II

Branham appeals his conviction on two grounds. His first
contention, which need not detain us long, is that the district
court erred in permitting Inspector Green to testify about how
and why drug dealers use express mail to send narcotics.
Branham contends that the testimony constituted expert opinion,
and that Green was not qualified as an expert. While
disagreeing that only an expert could testify as to these points,
the government also argues that any error in admitting that
portion of Green’s testimony was harmless, see FED. R. CRIM. P.
52(a), because it did not inculpate Branham. The government’s
point is well taken. Branham did not dispute that the package
was sent by a drug dealer or that it contained PCP. His defense
was that he never took possession of the package and that he did
not know what it contained -- topics not covered in the disputed
testimony. Not surprisingly, Branham did not respond to the
government’s harmless error argument in his reply brief.
Because we agree with that argument, we reject Branham’s
claim that the admission of Green’s testimony compels reversal
of his conviction.

The defendant’s principal contention is that the
government’s evidence was insufficient to support his
conviction. Our standard for reviewing such a challenge is
narrow: We must accept the jury’s guilty verdict if we conclude
that “‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United
States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In making that
determination, “the prosecution’s evidence is to be viewed in the
 8

light most favorable to the government, drawing no distinction
between direct and circumstantial evidence, and giving full play
to the right of the jury to determine credibility, weigh the
evidence and draw justifiable inferences of fact.” United States
v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005) (internal quotation
marks and citation omitted). Branham argues that the
government’s evidence was insufficient because “there was no
indication defendant had any idea what was in the package.”
Appellant’s Br. 28. We disagree.

First, there was evidence from which the jury could infer
that the package, containing thousands of dollars worth of drugs,
was sent to a mailbox to which Branham had arranged his own
ready access. Wrice testified that Branham had picked up her
mail for her on prior occasions, and she confirmed that she told
the grand jury that he had previously received two or three
packages of his own at her address. When Branham asked for
her mailbox key on the day of the delivery, she gave it to him
without hesitation.

Second, there was evidence from which the jury could
conclude that Branham was anticipating the arrival of the
package. Inspector Green testified that Branham called to him
when he was at the postal truck, asked him whether he was
coming into the building, appeared anxious to get the package,
and repeatedly asked Green if he could take the package from
him. See United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir.
1995) (finding that the defendant’s “general keen interest in the
arrival of the package” was “circumstantial evidence supporting
an inference that [the defendant] had knowledge of the
package’s true contents”); United States v. Simms, 18 F.3d 588,
594 (8th Cir. 1994) (holding that evidence that the defendant
“was expecting the package” was support for “the inference of
his knowing involvement”). Moreover, although Branham told
Green that it was Wrice who was anticipating the arrival of the
 9

package, Wrice testified that she was not. In fact, she told both
Detective Zerega and the grand jury that Branham had said he
was expecting a package and had asked for her key so he could
retrieve it.1

Third, there were numerous pieces of evidence suggesting
that Branham was trying to conceal his connection to the
package, from which the jury could conclude that he had
knowledge of its illegal contents. See Jackson, 55 F.3d at 1226
(holding that the defendant’s “attempts to disassociate his name
from the delivery of the package showed consciousness of
guilt”); Simms, 18 F.3d at 594 (holding that the “fact that [the
defendant] signed a false name” on a delivery sheet “supports
the inference that he wanted to conceal his true identity, which,
in turn, supports the inference that his involvement in the
transaction was knowing and intentional”). In this regard, there
was Branham’s just-mentioned statement to Green that it was
Wrice who was expecting the package, contradicted by Wrice’s
testimony; there was also Branham’s statement that Wrice had
been calling the post office for the package, contradicted by
Green’s information that no one had done so. In addition, there
was the fact that Branham wrote a name and address on the
delivery receipt that differed from those on his identification
card. Although a jury could have concluded from Wrice’s
testimony (that she called him “Wes”) that “Wessaria Branham”
was Branham’s true name, it did not have to do so. Green’s
testimony that Branham appeared nervous while filling out the
delivery receipt was further evidence from which the jury could
infer his guilty knowledge. See United States v. Johnson, 57
F.3d 968, 972 (10th Cir. 1995) (holding that, inter alia, the

1
Although Wrice’s trial testimony was inconsistent with some
parts of her grand jury testimony, those parts were admissible as
substantive evidence, see FED. R. EVID. 801(d)(1), and a reasonable
juror could have credited the grand jury testimony.
 10

defendant’s “nervousness . . . directed at the package in
question,” and the fact that she used a false first name and
address on an airbill, supported the “jury’s reasonable inference
of [her] knowledge” of the package’s contents).

Finally, there was evidence that would support an inference
that Branham was involved in drug dealing out of Wrice’s
building. Wrice testified that Branham spent hours with his
friends in her apartment, where the police found PCP that Wrice
testified was not hers. Further, the police found more than
$2,000 in the pocket of one of those friends. From this, a
reasonable jury could conclude that Branham and his friends
took advantage of a bedridden woman and used her apartment
to store illegal drugs. Such a conclusion was also supported by
Green’s testimony that the regular mail carrier had reported that
drug distribution was going on in apartment 301 of the building2
-- the apartment in which Wrice thought Branham lived. See
Simms, 18 F.3d at 594-95 (affirming a conviction for receipt of
a package of crack cocaine where the defendant had been
involved in other drug activity and signed a false name). All of
this, together with the evidence recited in the preceding
paragraphs, was more than sufficient to permit a rational trier of
fact to find beyond a reasonable doubt that Branham knew the
package contained a controlled substance.

Branham next argues that, even if the jury could have
reasonably concluded that he knew the package contained a
controlled substance, it could not have found that he specifically

2
Branham did not object to this testimony on hearsay (or any
other) grounds at trial, and does not argue on appeal that it constitutes
plain (or any other kind of) error. See United States v. White, 116 F.3d
903, 923 (D.C. Cir. 1997) (noting that hearsay evidence not objected
to at trial may be considered by the jury and appellate court in the
absence of plain error).
 11

knew the substance was PCP. Such a finding, he insists, is
required for conviction. Because we do not agree that such a
finding is required, we need not consider whether it could
reasonably have been made.

Branham’s contention is that a conviction for violating 21
U.S.C. § 841(a) and (b)(1)(B)(iv) requires proof that the
defendant knew the drug he possessed was PCP. He bases this
claim on Apprendi v. New Jersey, which held 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.”
530 U.S. 466, 490 (2000). After Apprendi, Branham maintains,
a defendant’s knowledge of drug type is an element of the
offense that the government must prove beyond a reasonable
doubt. Appellant’s Reply Br. 7. In making this claim, Branham
faces an uphill climb, given that our eleven sister circuits have
all held, after Apprendi, that a defendant’s knowledge of drug
type is not an element of the offenses proscribed by § 841(a) and
(b).3 Our own examination persuades us that the hill is

3
See United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir.
2002); United States v. King, 345 F.3d 149, 152-53 (2d Cir. 2003);
United States v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001); United
States v. Brower, 336 F.3d 274, 276-77 (4th Cir. 2003); United States
v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003); United
States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003); United States v.
Carrera, 259 F.3d 818, 830 (7th Cir. 2001); United States v.
Sheppard, 219 F.3d 766, 768 n.2, 769 (8th Cir. 2000); United States
v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002); United States v.
Briseno, 163 F. App’x 658, 666 (10th Cir. 2006); United States v.
Garcia-Frias, 239 F. App’x 575, 577 (11th Cir. 2007). There is,
however, some intra-circuit inconsistency on this point. In United
States v. Jenkins, 345 F.3d 928, 942 (6th Cir. 2003), the Sixth Circuit
listed a defendant’s knowledge that a package contained cocaine as an
element of the offense, although it had recently rejected a requirement
 12

insurmountable.

Branham is correct that, “[a]fter Apprendi, . . . this court
interpreted § 841 as a tripartite statute establishing three separate
offenses, with different maximum sentences based on [the] drug
quantity” thresholds for specific drug types listed in that section.
United States v. Graham, 317 F.3d 262, 274 (D.C. Cir. 2003);
see United States v. Webb, 255 F.3d 890, 895-96 (citing United
States v. Fields, 242 F.3d 393, 396 (D.C. Cir. 2001), aff’d and
amended on reh’g, 251 F.3d 1041, 1043 (D.C. Cir. 2001)).
Therefore, “‘before a defendant can be sentenced to any of the
progressively higher statutory maximums that are based on
progressively higher quantities of drugs specified in subsections
841(b)(1)(A) or (B), the Government must state the drug type
and quantity in the indictment, submit the required evidence to
the jury, and prove the relevant drug quantity beyond a
reasonable doubt.’” United States v. Lafayette, 337 F.3d 1043,
1048 (D.C. Cir. 2003) (quoting Fields, 242 F.3d at 396). In
accordance with these requirements, Branham’s indictment
listed a mixture or substance containing PCP as the drug type
and 100 grams or more of that mixture or substance as the
quantity. It was the jury’s determination that Branham’s crime
involved that drug type and quantity that subjected him to the
mandatory minimum sentence of 5 years’ and maximum
sentence of 40 years’ imprisonment specified in 21 U.S.C. §

to prove knowledge of drug type and quantity in Villarce, 323 F.3d at
439 (citing United States v. Garcia, 252 F.3d 838, 844 (6th Cir.
2001)). Similarly, the Eighth Circuit stated in Simms that “the
government must prove beyond a reasonable doubt that the [the
defendant] ‘knowingly possessed cocaine with intent to distribute it,’”
18 F.3d at 594 (quoting United States v. Bennett, 956 F.2d 1476, 1482
(8th Cir. 1992)), but it subsequently explained in Sheppard that
knowledge of drug type and quantity is not required, see 219 F.3d at
768 n.2, 769.
 13

841(b)(1)(B)(iv).4

But nothing in § 841 or our case law suggests that
knowledge of the specific drug type (or quantity) at issue is an
element of any of the offenses it states. To the contrary,
§ 841(a) requires only that the defendant “knowingly or
intentionally . . . possess with intent to . . . distribute . . . a
controlled substance.” 21 U.S.C. § 841(a) (emphasis added).
And § 841(b), which assesses increasing penalties for different
combinations of drug types and quantities, requires proof only
that the offense “involv[ed]” the specified type and quantity. 21
U.S.C. § 841(b). In short, the defendant’s knowledge of the type
of drug at issue in his offense is not a “fact that increases the
penalty for a crime beyond the prescribed statutory maximum,”
and hence is not a fact that “must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
Accordingly, there is no ground for concluding that the evidence
was insufficient to support the charge upon which Branham was
convicted.

III

Branham also appeals from the sentence imposed by the
district court. At the time of his sentencing in 2004, courts

4
Had Branham been charged and found guilty of possession with
intent to distribute a kilogram or more of a mixture or substance
containing PCP, he would have faced a mandatory minimum sentence
of 10 years and a maximum sentence of life. See 21 U.S.C. §
841(b)(1)(A)(iv). Had the crime involved less than 100 grams of such
a mixture or substance, or had the indictment charged no specific
quantity, Branham would have faced a maximum sentence of 20 years,
with no mandatory minimum. See 21 U.S.C. 841(b)(1)(C). See
generally Lafayette, 337 F.3d at 1048; Webb, 255 F.3d at 897.
 14

regarded the U.S. Sentencing Guidelines as mandatory. In
United States v. Booker, however, the Supreme Court held that
the enhancement of a defendant’s sentence pursuant to a
mandatory guidelines regime violates the Sixth Amendment.
543 U.S. 220, 244 (2005); see United States v. Adewani, 467
F.3d 1340, 1341 (D.C. Cir. 2006); United States v. Mejia, 448
F.3d 436, 452 (D.C. Cir. 2006). To remedy this constitutional
defect, the Court severed the provisions of the Sentencing
Reform Act that made the Sentencing Guidelines mandatory,
thereby rendering them “effectively advisory.” Booker, 543
U.S. at 245; see Adewani, 467 F.3d at 1341.

In light of Booker, both parties agree that the district court
erred in imposing a mandatory Guidelines sentence. In a case
in which the defendant objected to the mandatory application of
the Guidelines in the district court, and where we cannot find the
error harmless, we must vacate the sentence and remand for
resentencing. See United States v. Ayers, 428 F.3d 312, 312
(D.C. Cir. 2005); United States v. Coumaris, 399 F.3d 343, 351
(D.C. Cir. 2005). However, where -- as here -- the defendant did
not object in the district court, we review a Booker claim only
for plain error. See United States v. Coles, 403 F.3d 764, 767
(D.C. Cir. 2005). In Coles, we held that the dispositive question
in such a case is “whether there would have been a materially
different result, more favorable to the defendant, had the
sentence been imposed with the post-Booker sentencing
regime.” Id.

We further held in Coles that, where the sentencing record
is insufficient for us to determine what sentence the district
court would have imposed had it known it should have regarded
the Guidelines as merely advisory, the appropriate disposition is
not to vacate and remand for a full resentencing, but rather to
grant a limited remand directed to a single question: “while
retaining jurisdiction over the case, we [will] remand the record
 15

to the District Court . . . to determine whether it would have
imposed a different sentence, materially more favorable to the
defendant, had it been fully aware of the post-Booker sentencing
regime.” Id. at 771; see Mejia, 448 F.3d at 454.5 Our rationale
was as follows: “‘[t]he only practical way (and it happens also
to be the shortest, the easiest, the quickest, and the surest way)
to determine whether the kind of plain error argued in these
cases has actually occurred is to ask the district judge.’” Coles,
403 F.3d at 770 (alteration in original) (quoting United States v.
Paladino, 401 F.3d 471, 482 (7th Cir. 2005)). In adopting this
limited remand procedure, we followed the lead of the Seventh
and Second Circuits. See Paladino, 401 F.3d at 484; United
States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005).

Both the government and the defendant agree that there is
nothing in the record that indicates how the district court would
have sentenced Branham had the court known that the
Sentencing Guidelines were only advisory, and both therefore
agree that a remand is required. Branham also acknowledges
that his case “would ordinarily be subject to [a limited, Coles]
remand.” Appellant’s Br. 32. However, because the judge who
sentenced him has since retired, Branham argues that we should
instead vacate the sentence and remand for a complete
resentencing. The government, by contrast, maintains that a
Coles remand is still appropriate, albeit with a new sentencing
judge. But the government concedes that, under these
circumstances, we should modify the Coles procedure -- which
ordinarily contemplates that the district court will hear only
from the defendant’s counsel, see Coles, 403 F.3d at 770 -- to
permit the defendant to appear at the remand hearing as well.

5
If thereafter the district court notifies this court that it would
have imposed a materially more favorable sentence, we will then
vacate the sentence and remand for a full resentencing. See Coles, 403
F.3d at 770-71.
 16

This is the first time that we have faced the question of how
to treat an unobjected-to Booker error when the original
sentencing judge is no longer available to preside over a remand.
The Seventh and Second Circuits, which we followed in Coles,
have divided over that question. The Seventh Circuit has
reasoned that, because “the only person who could really tell us
whether he would have imposed the same sentence based on the
facts and evidence of a particular case is the original ‘sentencing
judge,’” there is “no purpose in restricting a newly assigned
judge to comparing the sentence he would impose post-Booker
. . . to the sentence initially imposed.” United States v. Bonner,
440 F.3d 414, 416, 417 (7th Cir. 2006). Thus, in the “unusual
and rare circumstance[]” of a sentencing judge’s unavailability,
the Seventh Circuit vacates the sentence and remands for full
resentencing. Id. at 417; see also United States v. Sanders, 421
F.3d 1044, 1052 (9th Cir. 2005) (holding that, when the original
sentencing judge is unavailable, “the purposes underlying [the
limited remand] are frustrated,” and “the appropriate response
to Booker error is to vacate the original sentence and remand for
a full resentencing hearing”).

The Second Circuit, by contrast, has reasoned that the
“direct sentencing experience” of all district judges “necessarily
means” that a judge on reassignment can determine “whether
there is a nontrivial difference between a challenged original
sentence and one that would have been imposed with a correct
understanding of the law.” United States v. Garcia, 413 F.3d
201, 228 (2d Cir. 2005). That circuit has therefore employed a
modified limited remand, in which the defendant has the right to
appear at the remand hearing, and the reassigned judge
“consider[s] what sentence he or she would have imposed on
behalf of the court with the benefit of Booker and a full record.”
Id. The reassigned judge need not, however, attempt the
“impossible” task of determining “what sentence the original
judge would have imposed.” Id.
 17

Although the Second Circuit’s approach is not
unreasonable, we come down on the side of the Seventh. The
question we asked in Coles was whether the original sentencing
judge would have imposed a materially more favorable sentence
had he known that he had sentencing discretion. Because
district courts -- no matter how collegial they may be -- do not
have a collective consciousness, one judge’s conclusion as to
what another would have done in a circumstance the latter never
contemplated would truly be a legal fiction. (The Second
Circuit does not disagree, conceding that determining what the
first judge would actually have done would be “impossible.”)
Nor, under these circumstances, is a limited remand a “practical
way” -- or a “short,” “easy,” “quick,” or “sure” way -- to resolve
our problem. Coles, 403 F.3d at 770. We cannot simply “ask
the district judge” who imposed the sentence to consider the
issue in light of a record he or she knows quite well. Id.
Instead, a newly assigned judge would have to examine the
entire record afresh, and hear from both counsel and the
defendant.

Because the rationale for a limited remand in a case like this
is weak and the practical advantages are slight, we are reluctant
to accept the government’s suggestion to institutionalize yet a
third kind of remand -- effectively Coles-plus (or full
resentencing-minus). We are particularly reluctant to do so
since there are so few cases as to which it is likely to apply.
Booker does not apply retroactively to cases on collateral
review, see In re Fashina, 486 F.3d 1300, 1303 (D.C. Cir.
2007), and, as the government concedes, there are few pre-
Booker cases left in the direct review pipeline. Indeed, this one
arises only because Branham’s appeal was substantially delayed
by difficulties in obtaining and transcribing the trial record.
Under these circumstances, adding more layers of complexity to
our remand procedures seems not worth the candle.
 18

Accordingly, we hold that, where a defendant did not raise
a Booker-like objection at his original sentencing, and the record
does not reveal whether the now-unavailable sentencing judge
would have imposed a materially different sentence under a
post-Booker regime, the appropriate disposition is to vacate the
sentence and remand the case for resentencing. As that is the
situation here, that is our disposition.

IV

Defendant Branham’s conviction is affirmed, and the case
is remanded for resentencing consistent with United States v.
Booker.

So ordered.