United States Court of Appeals
For the First Circuit
No. 04-1812
UNITED STATES OF AMERICA,
Appellee,
v.
MARKENO WALTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and DiClerico, Jr.,* District Judge.
David Shaughnessy, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.
January 11, 2006
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. On June 19, 2003, a grand jury
sitting in the District of Massachusetts issued a five-count
indictment against Markeno Walter, a previously convicted felon.
Walter was indicted with evidence from two controlled purchases of
firearms arranged by the Western Massachusetts Gang Task Force
("Task Force"), a joint state-federal law enforcement initiative
headed by the FBI. The Task Force had set up the purchases between
Walter and a cooperating witness for the government named Terry
Brown, who also happened to be Walter's cousin.
The first purchase took place on June 28, 2002 in the
vicinity of Springfield, Massachusetts. On this occasion, Brown
gave Walter $400 in cash and received in return a Lorcin .380 semi-
automatic handgun that had its serial number removed, as well as
ammunition. Brown was equipped with a recording device and a
transmitter during this encounter, so the entire transaction was
recorded on tape. The meeting between Brown and Walter was also
videotaped by a member of the Task Force who was parked in a
surveillance van nearby. The second controlled purchase took place
on July 11, 2002 under similar circumstances. Brown, fitted with
a recording device and a transmitter and under video surveillance,
bought a .38 caliber revolver and ammunition from Walter for $400.
Using the confiscated weapons and ammunition, the
audiotapes and videotapes of the two transactions, and the
testimony of the various law enforcement officials involved in the
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controlled purchases, the government obtained its indictment in
June 2003. The indictment stated that Walter unlawfully possessed
firearms and ammunition that had traveled in interstate commerce,
in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2, and that
Walter also unlawfully possessed a firearm with an obliterated
serial number, in violation of 18 U.S.C. § 922(k).
In November 2003, a trial commenced in the district court
during which Brown testified on behalf of the government against
Walter. After three days of deliberation, a jury indicated that it
could not reach a unanimous verdict, and a mistrial was declared.
In February 2004, a second trial began. This time, the government
did not call Brown as a witness, deciding instead to introduce the
audiotapes made during the controlled purchases. Also, during the
course of this second trial, Walter made a motion for a judgment of
acquittal pursuant to Fed. R. Crim. P. 29 on the grounds of
entrapment, which the district court denied. After deliberating,
a jury found Walter guilty on all five counts of the indictment.
On May 27, 2004, the district court, using the standards
set forth in the Armed Career Criminal Act ("ACCA") and the
Sentencing Guidelines, sentenced Walter to a term of imprisonment
of 188 months; to a term of five years of supervised release; and
to a $500 special assessment. In this appeal, Walter contests the
district court's admission of certain evidence, the court's denial
of his motion for a judgment of acquittal, and his sentence. After
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careful consideration, we vacate Walter's sentence and remand for
resentencing. On Walter's other claims, however, we affirm the
decision of the district court.
I. Evidentiary issues
We review the district court's evidentiary rulings for
abuse of discretion. Ramírez v. Debs-Elías, 407 F.3d 444, 449 (1st
Cir. 2005). "Within that rubric, however, we consider de novo
whether the strictures of the Confrontation Clause have been met."
United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir. 2005).
Walter's first claim is that he was deprived of his
rights under the Confrontation Clause of the Sixth Amendment when
the district court admitted into evidence Brown's taped statements.
This argument fails, however, because the statements by Brown that
were admitted had a nonhearsay purpose -- namely, they were offered
not for the truth of the matters asserted, but to provide context
for the admissions of Walter. The Supreme Court has held in
several instances that nonhearsay statements do not implicate the
Confrontation Clause. See United States v. Inadi, 475 U.S. 387,
398 n.11 (1986); Tennessee v. Street, 471 U.S. 409, 414 (1985).
That Brown's statements are to be characterized as
"nonhearsay" in this instance is clear. In several cases, we have
held that when statements are offered only to provide context and
not for the truth of the matter asserted, those statements are not
hearsay. See United States v. Catano, 65 F.3d 219, 225 (1st Cir.
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1995); United States v. McDowell, 918 F.2d 1004, 1007-08 (1st Cir.
1990). At trial, the taped conversations that were used by the
prosecution contained a number of admissions by Walter. Admissions
of a party are admissible under Fed. R. Evid. 801(d)(2)(A).
Brown's statements merely placed Walter's admissions in context.
For example, Brown's question to Walter about whether someone was
going to give the "thirty-eight" [i.e., a thirty-eight caliber
revolver] to Walter was admitted to provide context to the
following response by Walter: "Yeah, it's my gun, n*****!1 What
are you talking about?" Similarly, Brown's question to Walter
about whether Brown could get "both [guns] . . . for eight hundred"
was admitted to provide context to the following response by
Walter: "No, I really don't want to sell this one."
In McDowell, the defendant sought to bar the use of
certain tapes containing proof that he had aided and abetted
several other individuals in the commission of various drug
trafficking crimes. After noting that the defendant's own
statements could be used against him, we wrote that "a defendant,
having made admissions, [cannot] keep from the jury other segments
of the discussion reasonably required to place those admissions
into context." McDowell, 918 F.2d at 1007. The other parts of the
discussion "were properly admitted as reciprocal and integrated
utterance(s) to put [the defendant's] statements into perspective
1
Racial epithet omitted.
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and make them intelligible to the jury and recognizable as
admissions." Id. at 1007 (internal citations and quotation marks
omitted). Because such statements were introduced only to provide
context, they were not to be considered hearsay. In the instant
case, Brown's statements were also not being offered for the truth
of the matters asserted but rather served as "reciprocal and
integrated utterance(s)," reasonably required to place Walter's
admissions into context and "make them intelligible to the jury."
Id. (internal quotation marks omitted).
Our characterization of Brown's statements as
"nonhearsay" is significant for another reason. It provides an
answer to Walter's argument that the admission of Brown's
statements is contrary to the Supreme Court's decision in Crawford
v. Washington, 541 U.S. 36 (2004). In Crawford, the Court held
that testimonial hearsay is not admissible under the Sixth
Amendment unless the defendant had a prior opportunity for cross-
examination and the declarant is unavailable. Walter argues that
the district court erred in admitting the audiotapes containing
statements by Brown because the government did not establish that
Brown was unavailable. In fact, claims Walter, Brown was
available, but the government consciously chose not to call him as
a witness because he had engaged in egregious sexual misconduct
during the time he was acting as a cooperating witness.
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Walter's reliance on Crawford, however, is misplaced.
The Supreme Court in that case went to great lengths to distinguish
testimonial and nontestimonial hearsay. However, it also noted
that the Confrontation Clause "does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted." Id. at 57 n.9. Crawford therefore does not call
into question this Court's precedents holding that statements
introduced solely to place a defendant's admissions into context
are not hearsay, and as such, do not run afoul of the Confrontation
Clause.
Walter's final challenge to the admissibility of this
evidence is that the district court erred because it did not issue
a limiting instruction advising the jury that it could use Brown's
statements only to provide context and not for substantive
purposes. See Fed. R. Evid. 105. Walter, however, never asked for
such a limiting instruction. As a result, he is not entitled to
argue here that the district court's failure to provide a limiting
instruction constitutes reversible error. Our precedents have made
this clear. See United States v. Murphy, 193 F.3d 1, 5 n.2 (1st
Cir. 1999) ("Of course, where a statement is offered for non-
hearsay uses, the defendant may be entitled to an instruction
limiting its use . . . but only if he asks for it."); United States
v. Cintolo, 818 F.2d 980, 999 (1st Cir. 1987) ("Although the trial
judge gave no limiting instruction . . . that is likely because the
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defendant never requested one. Having failed in this regard, [the
defendant] cannot now be heard to complain of any alleged omission
on the part of the district court in this wise."); Staniewicz v.
Beecham, Inc., 687 F.2d 526, 531 (1st Cir. 1982) ("[A]ppellant
waived any objection to the lack of instruction by his failure to
make a timely request for a limiting instruction."). We therefore
hold that Walter was not deprived of his rights under the
Confrontation Clause when the district court admitted into evidence
Brown's taped statements.
II. Entrapment
Walter next contends that the government did not properly
refute his claim that he had been entrapped. As a result, the
district court should have granted his motion for a judgment of
acquittal. We review de novo a district court's denial of a motion
for a judgment of acquittal. See United States v.
Cruzado-Laureano, 404 F.3d 470, 480 (1st Cir. 2005).
Entrapment is present "when the criminal design
originates with the officials of the Government, and they implant
in the mind of an innocent person the disposition to commit the
alleged offense and induce its commission in order that they may
prosecute." Sorrells v. United States, 287 U.S. 435, 442 (1932).
Using this definition, it is easy to see that there are two
necessary prongs to the entrapment defense: "government inducement
of the crime, and a lack of predisposition on the part of the
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defendant to engage in the criminal conduct." Matthews v. United
States, 485 U.S. 58, 63 (1988); United States v. Gamache, 156 F.3d
1, 9 (1st Cir. 1998); United States v. Rodríguez, 858 F.2d 809, 815
(1st Cir. 1988) (noting that "entrapment cannot occur unless both
elements coincide").
"[A] defendant is entitled to a jury instruction on
entrapment if there is record evidence which fairly supports the
claims of both government inducement of the crime and defendant's
lack of predisposition to engage in it." Rodríguez, 858 F.2d at
814. Here, the district court found that an entrapment instruction
was merited, telling the jury that the government could succeed on
the entrapment issue if it proved beyond a reasonable doubt that
either 1) there was no inducement; or 2) that the defendant was
predisposed. See id. at 815 (noting that "[o]nce the defense is
properly in the case, the government is obligated to prove beyond
a reasonable doubt that no entrapment occurred" and that "the
defense fails if the jury is persuaded beyond reasonable doubt that
either [element] is lacking in a particular case"). Walter argues
on appeal that the government failed to carry this burden. As a
result, his entrapment defense succeeded, and a judgment of
acquittal should have been entered as to all counts.
Alternatively, he argues that the district court should have found
as a matter of law that the government had failed to disprove
inducement. Therefore, the inducement prong of the entrapment
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defense was satisfied, and the district court should have withdrawn
that issue from the jury's consideration as he requested.
In evaluating Walter's claims, we must examine the two
prongs of the entrapment defense. First, we look at inducement.
Inducement may be found where the government goes beyond providing
an opportunity for the crime's commission and "creates a risk of
causing an otherwise unwilling person to commit the crime."
Gamache, 156 F.3d at 9; see also United States v. Gendron, 18 F.3d
955, 961 (1st Cir. 1994) (inducement "consists of an 'opportunity'
plus something else -- typically, excessive pressure by the
government upon the defendant or the government's taking advantage
of an alternative, non-criminal type of motive.").
Walter notes that exploitation of sympathy can amount to
improper inducement, pointing to the following decisions: Sorrells,
287 U.S. at 441 (sympathy among war veterans); Sherman v. United
States, 356 U.S. 369, 373 (1958) (playing upon defendant's sympathy
for informant's common narcotics experience and withdrawal
symptoms); and United States v. Montañez, 105 F.3d 36, 38-40 (1st
Cir. 1997) (sympathy for family circumstances). He argues that the
government exploited his sympathy by having Brown, his cousin,
claim that he was in danger from gang members and that he needed
guns for personal protection. In other words, Brown -- and by
extension, the government -- induced Walter to procure guns by
playing on his family sympathies and concerns for Brown's safety.
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As proof that Walter was motivated by these factors, he points to
an exchange on the June 28 tape in which Brown states, "I been
having some problems with . . . those gang motherfuckers," to which
Walter replies, "You ain't gonna have no problems now." Walter
further argues that the only admissible evidence pertaining to the
issue of inducement came from his own testimony and the tapes, both
of which supported his claims of improper government inducement.
He then cites to a number of cases that he claims, taken together,
stand for the proposition that a defendant's own unrebutted
testimony is sufficient to establish inducement as a matter of law.
In Masciale v. United States, 356 U.S. 386 (1958), the
Supreme Court noted that even if a defendant's testimony is not
disputed by a government witness, the defendant is not necessarily
entitled to an instruction of entrapment as a matter of law because
the jury might choose to disbelieve the defendant's testimony. Id.
at 388. That the jury could conceivably disbelieve Walter in this
instance is entirely within the realm of possibility. There was
ample evidence upon which a reasonable jury could have chosen to
disbelieve Walter's argument that the only reason he obtained
firearms for Brown was because Brown had taken advantage of
Walter's family sympathies. For example, the jury heard testimony
from Walter that, although he provided Brown with the .380 caliber
firearm on June 28, 2002, he brought a .25 caliber firearm with him
on that day for protection from Brown "b]ecause I didn't want him
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to -- I couldn't put that gun in his hand and just let him take it
from me. If he puts bullets in the gun he could have just took it
from me, you know what I'm saying." Given Walter's testimony that
he saw it necessary to arm himself for his meeting with Brown, a
reasonable jury could have chosen to disbelieve Walter's testimony
that the only reason he came into the possession of firearms was
for the altruistic purpose of helping Brown. Therefore, Walter's
alternative argument -- that inducement was established as a matter
of law and that therefore that issue should have been withdrawn
from the jury's consideration -- fails.
In addressing Walter's primary argument that the
government failed to carry its burden of proving that no entrapment
occurred, we again note that the government's burden is met if it
proves beyond a reasonable doubt that either element of the
defense, inducement or lack of predisposition, fails. Rodríguez,
858 F.2d at 815. Focusing on the predisposition prong, we think
that the government met its burden of proving that the defendant
was predisposed to possess the guns in question. The recorded
conversations between Walter and Brown contained numerous
admissions by Walter that show he was predisposed to possess
handguns and ammunition. The jury, for example, heard recorded
statements in which Walter mentioned that he knew how to file the
serial number off of a firearm and that he knew how to clean a .38
caliber revolver. We have previously held that evidence of
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predisposition may be inferred from conversations in which a
defendant displays knowledge or experience in the criminal activity
under investigation. See United States v. Panet-Collazo, 960 F.2d
256, 259-60 (1st Cir. 1992) (in tape-recorded conversations,
defendant stated that he had "worked with cocaine a lot"); United
States v. Tejeda, 974 F.2d 210, 218 (1st Cir. 1992) (informant
testified that defendant talked about going rate of cocaine).
Given Walter's admissions, a reasonable jury could easily have
decided that Walter was predisposed to possess handguns and
ammunition, including a handgun with an obliterated serial number.
The government therefore satisfied its burden and properly refuted
Walter's claim that he had been entrapped. As a result, we hold
that the district court was correct to deny Walter's motion for a
judgment of acquittal.
III. Sentencing
Walter's final challenge is to his sentence. Walter was
sentenced pursuant to the Armed Career Criminal Act ("ACCA"), 18
U.S.C. § 924(e). The ACCA establishes a 15-year (180-month)
mandatory minimum sentence for any person who violates 18 U.S.C.
§ 922(g) and has three prior convictions "for a violent felony or
a serious drug offense, or both, committed on occasions different
from one another." 18 U.S.C. § 924(e)(1). The district court
found that Walter satisfied this description. Walter was also
subjected to a further enhancement of his sentence under the then-
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mandatory United States Sentencing Guidelines § 4B1.4. The
mandatory minimum of the ACCA, combined with the application of the
Sentencing Guidelines, resulted for Walter in a total sentencing
range of between 188 and 235 months. The district court opted for
the low end of this range and settled on a sentence of 188 months.
Walter here contests both the ACCA and Sentencing Guidelines
portions of his sentence.
A. ACCA
As to Walter's sentencing under the ACCA, his eligibility
under the statute was dependent on three prior convictions for a
"violent felony" or "serious drug offense," "committed on occasions
different from one another." 18 U.S.C. § 924(e). The district
court sentenced Walter as an Armed Career Criminal based on his
three prior drug convictions and a manslaughter conviction. These
four crimes, mentioned in the presentence report ("PSR"), were
considered the necessary ACCA predicates. Walter contends,
however, that the district court misused the PSR to determine his
ACCA status. Had the district court correctly used the PSR, he
claims, it would have found only two ACCA predicates, rendering
§ 924(e) inapplicable.
Walter bases his argument on the Supreme Court's opinions
in Taylor v. United States, 495 U.S. 575 (1990), and United States
v. Shepard, 125 S. Ct. 1254 (2005). In Taylor, the Supreme Court
held that, in determining whether a crime constitutes a violent
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felony under the ACCA, a sentencing court must take "a formal
categorical approach, looking only to the statutory definitions of
the prior offenses, and not to the particular facts underlying
those convictions." Taylor, 495 U.S. at 600. In Shepard, the
Court held that "Taylor's reasoning controls the identification of
. . . convictions following pleas, as well as convictions on
verdicts." Shepard, 125 S. Ct. at 1259. As a consequence, when
determining whether a prior conviction resulting from a guilty plea
is a violent felony for purposes of the ACCA, a court is limited to
an examination of the language of the statute of conviction, "the
terms of the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant . . . or to some
comparable judicial record of this information." Id. at 1263.
In light of these holdings, Walter argues that the
district court's use of the PSR was incorrect. In particular, he
points to two of the drug offenses that were counted by the
district court as ACCA predicates. He argues that two of these
offenses were disposed of on the same day, and it is only from the
PSR's review of the pertinent police reports -- in violation of
Taylor and Shepard -- that the court concluded that the two
offenses were committed on separate occasions. If these two crimes
were not in fact committed on separate occasions -- a question that
cannot be answered based solely on the record analysis permitted
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under Shepard -- then they only count as one predicate, bringing
the total to three.
Walter then combines this argument with one stating that
his manslaughter conviction should also be disqualified as an ACCA
predicate because, under the record analysis mandated by Taylor and
Shepard, it was impossible for the district court to determine
whether his manslaughter conviction qualified as a "violent felony"
under the ACCA. Normally, a court is required to "look only to the
fact of conviction and the statutory definition of the prior
offense" to determine whether it is a predicate offense under the
ACCA. Taylor, 495 U.S. at 602. However, in this case, Walter
notes that "the basis for the court's sentence was a presentence
report that 1) did not include the source of its information
concerning the prior conviction; 2) did not include official copies
of those prior convictions; and 3) did not include citations to
specific criminal statutes." Specifically, Walter states that
"[t]he PSR identifies a 'manslaughter' conviction but does not cite
to a statute, nor does it say whether the conviction was for
involuntary or voluntary manslaughter." Walter notes that "[t]here
is a single manslaughter statute in Massachusetts" which "covers
both voluntary and involuntary manslaughter," including conduct
involving recklessness. Since, Walter argues, involuntary
manslaughter includes offenses which should not be considered
"violent felonies," his manslaughter conviction cannot be
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considered a predicate offense under the ACCA. Thus, if Walter's
two arguments -- about his drug convictions and his manslaughter
conviction -- have merit, there are only two ACCA predicates, and
§ 924(e) is rendered inapplicable.
Even assuming that Walter is correct about the use -- or
rather, misuse -- of his drug convictions, we believe that the
district court correctly determined that Walter's manslaughter
conviction qualified as an ACCA predicate. Because Walter did not
raise this issue below, our review is for plain error. "To prevail
under this standard, [Walter] must show that (1) an error occurred,
(2) the error was clear or obvious, (3) the error affected his
substantial rights, and (4) the error also seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
United States v. Wiggin, 429 F.3d 31, 38 (1st Cir. 2005) (citing
United States v. Olano, 507 U.S. 725, 732, 734 (1993)).
Under the ACCA, a prior conviction is for a "violent
felony" if the prior offense was "punishable by imprisonment for a
term exceeding one year . . . [and] . . . involves conduct that
presents a serious potential risk of physical injury to another."
18 U.S.C. § 924(e). The Massachusetts manslaughter statute
provides:
Whoever commits manslaughter shall, except as
hereinafter provided, be punished by
imprisonment in the state prison for not more
than twenty years or by a fine of not more
than one thousand dollars and imprisonment in
jail or a house of correction for not more
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than two and one half years. Whoever commits
manslaughter while violating the provisions of
sections one hundred and one to one hundred
and two B, inclusive, of chapter two hundred
and sixty-six shall be imprisoned in the state
prison for life or for any term of years.
Mass. Gen. Laws ch. 265, § 13 (2005). The statute does not
distinguish between voluntary and involuntary manslaughter;
therefore, both offenses are punishable by imprisonment for a term
exceeding one year.
Furthermore, under Massachusetts common law, both
involuntary and voluntary manslaughter appear to "involve conduct
that presents a serious potential risk of physical injury to
another." "Involuntary manslaughter is an unintentional killing
resulting from wanton and reckless conduct or a battery not
amounting to a felony which the defendant knew or should have known
endangered human life." Commonwealth v. DeMarco, 830 N.E.2d 1068,
1073 (Mass. 2005) (internal quotation marks omitted).
"[I]nvoluntary manslaughter involves a high degree of likelihood
that substantial harm will result to another." Commonwealth v.
Lyons, 828 N.E.2d 1, 6 (Mass. 2005) (internal quotation marks
omitted). "Voluntary manslaughter is an unlawful killing which
occurs in circumstances which negate the element of malice."
Commonwealth v. Squailia, 706 N.E.2d 636, 642 (Mass. 1999).2
2
Notably, other circuits have found that manslaughter constitutes
a violent felony for purposes of the ACCA. See United States v.
Sanders, 97 F.3d 856, 859-60 (6th Cir. 1996) (holding that
conviction under Ohio's involuntary manslaughter statute is a
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Thus, manslaughter, under Massachusetts law, is a violent
felony within the meaning of the ACCA as a matter of law. In light
of this conclusion and both parties' arguments on appeal that the
Massachusetts manslaughter statute applies in Walter's case, Walter
is unable to show any "plain error" by the district court. Given
this holding, the three required ACCA predicates were present. We
therefore decline to address the merits of Walter's alternative
argument -- that it was impossible for the district court to
determine whether two of his drug convictions were committed on
different occasions -- and hold that the ACCA portion of Walter's
sentence was correct.
B. Sentencing Guidelines
As to the Sentencing Guidelines portion of his sentence,
Walter points out that he was sentenced prior to the Supreme
Court's decision in United States v. Booker, 543 U.S. 220 (2005).
Since the district court sentenced him under a mandatory Guidelines
regime, he argues that he is entitled to resentencing in
"violent felony" conviction under the ACCA because it "'involves
conduct that presents a serious potential risk of physical injury
to another.'"); United States v. Williams, 67 F.3d 527, 528 (4th
Cir. 1995) (involuntary manslaughter under South Carolina's
involuntary manslaughter statute is a "violent felony" under the
ACCA because that statute proscribes "[c]onduct that involves 'the
reckless disregard for the safety of others' (and which results in
someone's death) [and thus] clearly presents a 'serious potential
risk of physical injury to another'"); United States v. Lujan, 9
F.3d 890, 892 (10th Cir. 1993) (concluding that manslaughter under
California law is a "violent felony" under the ACCA because it has
the element of the use, attempted use, or threatened use of
physical force).
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conformance with Booker. See United States v. Antonakopoulos, 399
F.3d 68, 75 (1st Cir. 2005) ("The Booker error is that the
defendant's Guidelines sentence was imposed under a mandatory
system."). In evaluating this argument, we first note that
Walter's claim of Booker error is unpreserved. In Antonakopoulos,
we stated that a Booker error is preserved only "if the defendant
below argued Apprendi or Blakely error [referring to Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542
U.S. 296 (2004)] or that the Guidelines were unconstitutional."
Antonakopoulos, 399 F.3d at 76. Walter did neither in this case
and acknowledges that his claim of Booker error here is
unpreserved.
We therefore review Walter's Booker claim for plain
error. Id. at 75. In Antonakopoulos, we stated what is required
in plain error review:
[F]or the court of appeals to notice and
correct an error not objected to in the
district court, there must be an "error" that
is "plain" and that "affects substantial
rights." If those three factors are all met,
the court of appeals then has discretion to
correct the error only if it seriously affects
the fairness, integrity or public reputation
of judicial proceedings.
Id. at 77 (internal quotation marks and citations omitted). We
also noted that the first two prongs of the test are automatically
satisfied whenever the defendant's Guidelines sentence was imposed
under a mandatory Guidelines system. Id. Given that Walter was
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sentenced under a mandatory Guidelines regime, we turn our
attention to the remaining two prongs of the test -- that the error
affect substantial rights, and that discretionary action by this
court is necessary because the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
To satisfy these final two prongs of the plain error
test, we have held that "the defendant must point to circumstances
creating a reasonable probability that the district court would
impose a different sentence more favorable to the defendant under
the new 'advisory Guidelines' Booker regime." Id. at 75. This is
not a heavy burden. In United States v. Heldeman, 402 F.3d 220
(1st Cir. 2005), we stated that "we are inclined not to be overly
demanding as to proof of probability where, either in the existing
record or by plausible proffer, there is reasonable indication that
the district judge might well have reached a different result under
advisory guidelines." Id. at 224.
We believe that Walter has satisfied this burden here.
He points to how the district court judge "unequivocally signaled
his displeasure with the severity of the mandatory sentencing
enhancements he felt obliged to apply." In United States v.
Jiménez, 419 F.3d 34 (1st Cir. 2005), we encountered a defendant
who made a nearly identical showing. We rejected the defendant's
claim, however, noting that although the district judge made a
number of comments that indicated that he "might have imposed a
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more lenient sentence if the Guidelines had been advisory at that
time," the judge also made an explicit statement that even if he
had the discretion to depart downwards given the defendant's
"heartbreaking" family circumstances, he would not exercise that
discretion. Id. at 46. Such a statement, we held, was fatal to
the defendant's Booker claim.
In this case, however, such a statement by the sentencing
judge was completely absent. Here, Judge Ponsor -- the same
district judge as in Jiménez -- only made statements indicating
that he would likely have imposed a more lenient sentence if given
the option to do so. He stated:
It's a very grim responsibility to have to
consider the appropriate sentence in this case
because of the impact of the Sentencing
Guidelines and the mandatory sentences in this
case, a mandatory sentence in this case . . .
It's a terribly, terribly onerous sentence and
I don't think there's anything to be said
about it other than that it is an
extraordinarily heavy sentence to be looking
at in this case. . . . But as I understand it,
and I've looked at the presentence report very
carefully, that the court is without
discretion based upon the Sentencing
Guidelines and the statutes passed by Congress
to impose a sentence below the 188 to 235
month range. That is my understanding of the
limitations of my discretion here this
afternoon. . . . I know that the defendant has
had a difficult life in a number of ways,
particularly being raised by his grandmother
and his aunt. . . . I know that he has a
relationship with a woman right now and
actually had been not having any trouble since
1995 or so, or '96 or so. . . . On the other
hand, he has these prior convictions and the
jury made its decision that he was guilty of
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these crimes, and I think my responsibility is
to impose the sentence at the very lowest end
of the guideline range.
In other words, the district judge commented that Walter's sentence
was "terribly, terribly onerous" and "extraordinarily heavy"
without providing any sort of limiting statement as he did in
Jiménez.
The government argues that in making these statements
about the weightiness of the sentence, the district judge was
referring to the sentence as a whole, not simply the eight-month
difference between the 180-month mandatory minimum under the ACCA
and Walter's ultimate sentence of 188 months. Although the
government is technically correct in that the comments of Judge
Ponsor relate to the severity of the sentence as a whole, we think
it likely -- from the tenor of the judge's comments, his overt
sympathy for the defendant's circumstances, and the absence of any
statement that he would withhold his exercise of discretion in this
case -- that he would have sentenced Walter more leniently had he
not been bound by the Guidelines. For example, he might only have
imposed the mandatory minimum under the ACCA and imposed no
additional sentence under the Guidelines. Alternatively, he may
have added a few additional months to the mandatory minimum, but
not so many months that the total sentence would extend to 188
months. Regardless of whether Judge Ponsor actually would have
taken any of these steps, Walter now at least deserves to be
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sentenced by a judge who has the latitude to make such sentencing
adjustments if he so desires. As we noted in Heldeman, "it will be
easy enough for the district judge on remand to say no with a
minimum expenditure of effort if the sentence imposed under the
pre-Booker guidelines regime is also the one that the judge would
have imposed under the more relaxed post-Booker framework."
Heldeman, 402 F.3d at 224. We therefore vacate Walter's sentence
and remand for resentencing.
IV. Conclusion
For the reasons set forth above, we vacate the decision
of the district court regarding Walter's sentence and remand for
further proceedings consistent with this opinion. The judgment of
the district court is affirmed as to Walter's other claims.
Affirmed in part, and vacated and remanded in part.
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