United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 20, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 03-10836
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MENG TUAN WANG,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-21-2-A
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
I. Background
Wang pleaded guilty to conspiracy to possess with the intent
to distribute approximately 1,000 doses of MDMA, and was sentenced
to one-hundred months of imprisonment and five years of supervised
release. This Court affirmed Wang’s judgment of conviction. United
States v. Wang, 89 F. App’x. 470 (5th Cir. 2004). The Supreme Court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
vacated this court’s judgment and remanded the case for further
consideration in light of United States v. Booker, 125 S.Ct. 738
(2005). Wang v. United States, 125 S.Ct. 1614 (2005). We requested
and received supplemental letter briefs addressing the impact of
Booker, 125 S.Ct. 738, and United States v. Mares, 402 F.3d 511 (5th
Cir. 2005).
In Booker, the Supreme Court emphasized that “[a]ny 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 the jury beyond a reasonable doubt.” Booker, 125 S.Ct.
at 756. Wang argued that the district court violated his Sixth
Amendment rights as outlined in Booker by enhancing his sentence
based on an additional quantity of MDMA that was not alleged in the
indictment, but attributed to his relevant conduct. Wang did not
concede liability for that additional quantity of MDMA in his guilty
plea. More importantly, Wang objected to the second addendum to the
Presentence Investigation Report (“PSR”) on the ground that “the
relevant conduct alleged therein must be proven by clear and
convincing evidence” because inclusion of that relevant conduct
would have an “extremely disproportionate effect” upon his sentence.
In response, the Probation Officer asserted that a defendant must
show factual findings in the PSR implausible in light of the record
as a whole. Using the preponderance of the evidence standard, the
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district court specifically found that Wang was responsible for the
additional amount of MDMA, which increased his total offense level
from 26 to 30. Wang challenges this offense level enhancement.
Ultimately, this case turns on whether Wang properly preserved
his Booker argument in the district court. If the error was not
preserved, we review the appellant’s sentence for plain error. See
Mares, 402 F.3d 511. If the error was preserved, we review his
sentence for harmless error. Mares, 402 F.3d 511, 520 n.9 (“...if
either the Sixth Amendment issue presented in Booker or the issue
presented in Fanfan is preserved in the district court by an
objection, we will ordinarily vacate the sentence and remand, unless
we can say the error is harmless under Rule 52(a) of the Federal
Rules of Criminal Procedure.”); see also United States v. Olano, 113
S.Ct. 1770, 1778(1993).
II. Analysis
Preservation of Error
Wang contends that his objection regarding the applicable
standard upon which to apply the guideline enhancements was
sufficient to preserve error. The Government, on the other hand,
argues that error was not preserved because defendants routinely
argue for a higher standard of proof without also making a case for
a jury-determination beyond a reasonable doubt.
Wang did not, however, fail to preserve his Booker challenge
to the district court’s enhancement of his sentence. An objection
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preserves error if it “was specific enough to allow the trial court
to take testimony, receive argument, or otherwise explore the issue
raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir 1997).
The major rationale behind requiring litigants to make timely
objections in an effort to avoid forfeiture of rights is “founded
upon considerations of fairness to the court and to the parties and
of the public interest in bringing litigation to an end after fair
opportunity has been afforded to present all issues of law and
fact.” United States v. Ocana, 204 F.3d 585, 589 (5th Cir.
2000)(quoting United States v. Calverley, 37 F.3d 160, 162 (5th Cir.
1994)). Hence, to preserve error, the objection must be
sufficiently specific to alert the district court as to the nature
of the objection and allow the court to correct the perceived error
at that level. See Ocana, 204 F.3d at 589.
Wang’s objection that the relevant conduct alleged by the
Probation Officer must be proven by clear and convincing evidence,
rather than the preponderance of the evidence, was tantamount to
stating that the district court’s standard violated his Sixth
Amendment rights. Thus, his objection was sufficient to preserve
error. Wang’s written objection not only notified the court of his
disagreement with the proposed standard, but also gave the district
court the opportunity to address the appropriateness of the
standard. Furthermore, the objection elicited a response in
opposition from the Probation Officer. Finally, the district court
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specifically applied the preponderance of the evidence standard.
Wang’s objections thus adequately apprised the district court that
he was raising a Sixth Amendment objection to the appropriateness
of the proposed standard for guideline enhancements.
Harmless Error
There is no question that the district court committed Sixth
Amendment Booker error by enhancing Wang’s sentence pursuant to its
finding that he was responsible for a greater quantity of drugs than
that which was alleged in his indictment or conceded in his guilty
plea. See Booker, 125 S.Ct. at 738. Because we hold that Wang
preserved his Booker challenge to the district court’s enhancement
of his sentence, we review his sentence for harmless error. Olano,
113 S.Ct. 1770, 1778. See also Mares, 402 F.3d at 520 n.9.
Harmless error is “[a]ny defect, irregularity, or variance that
does not affect [the] substantial rights" of the defendant. FED. R.
CRIM. P. 52(a). An error afflicts the defendant’s substantial
rights, and thus is prejudicial, “if it affects the outcome of the
district court proceedings.” United States v. Pineiro, 410 F.3d
282, 285 (5th Cir. 2005)(citing Olano, 113 S.Ct. 1770(1993)).
Hence, to show harmlessness, the government bears the burden of
demonstrating beyond a reasonable doubt that the federal
constitutional error of which a defendant complains did not
contribute to the sentence that he received. United States v.
Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
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The government cannot meet this arduous burden here. It can
point to no record evidence that would prove beyond a reasonable
doubt that the district court would not have sentenced Wang
differently had it acted under an advisory Guidelines regime. There
is no indication from the record as to what sentence the district
court would have imposed if the Federal Sentencing Guidelines were
advisory rather than mandatory. Therefore, based on the record
before us, we cannot conclude that the mandatory nature of the
Guidelines at the time of Wang’s sentence did not contribute to the
sentence that he received. Accordingly, we VACATE Wang’s sentence
and REMAND for resentencing.
VACATED and REMANDED.
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