United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 4, 2006
Charles R. Fulbruge III
Clerk
04-21014
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
DEMARCUS LACARL JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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Before REAVLEY, DAVIS and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Demarcus LeCarl Jones appeals his sentence after
entering a guilty plea for being a felon in possession of a
firearm. Finding that any Booker error in the district court’s
discretionary upward departure was harmless, we affirm.
I.
Jones’ presentence report (PSR) calculated his guideline
sentence range at 46 to 57 months. Jones filed no objections to
the PSR. At sentencing, the district court departed upward and
sentenced Jones to the statutory maximum sentence of 120 months.
As justification, the court noted that based on the police report
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Jones was driving a car and in possession and under the influence
of drugs at the time of the current offense. The court found
that this behavior seriously endangered the public and seriously
aggravated the offense. The court also alluded to charges on two
state court offenses that occurred after the instant offense in
which Jones apparently possessed guns and “used them in personal
violence.” Based on Jones’ persistent use of firearms or
violence against others, and the public endangerment he created
while committing the instant offense, the district court departed
upward seven levels to a guideline range of 97 to 121 months of
imprisonment.
Jones objected to the upward departure on the basis that it
was based on facts not proven beyond a reasonable doubt to a jury
or admitted by Jones. The district court overruled the
objections and sentenced Jones to 120 months in prison, the
statutory maximum for his offense, and three years of supervised
release. Jones appeals.
II.
Jones argues that the district court violated his Sixth
Amendment rights under Booker when it based its upward departure,
at least in part, on judicially found facts. Jones’ objection to
the upward departure in the district court preserved this
challenge. “[I]f either the Sixth amendment issue presented in
Booker or the issue presented in Fanfan is preserved in the
district court by objection, [this court] will ordinarily vacate
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the sentence and remand, unless we can say the error is harmless
under Rule 52(a) of the Federal Rules of Criminal Procedure.”
United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005).
The government bears the burden of demonstrating that the error
was harmless by demonstrating beyond a reasonable doubt that the
Booker error did not contribute to the sentence he received.
United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005). In
other words, the government must point to evidence in the record
showing that the district court “would have imposed the same
sentence under an advisory sentencing scheme.” United States v.
Pineiro, 410 F.3d 282, 286 (5th Cir. 2005).
In several unpublished opinions, we have found harmless
error in cases in which the district judge expressly stated that
it would impose the same sentence under an advisory system or
expressed disappointment that the statutory maximum sentence that
it imposed was not greater. United States v. Nelson, 2005 U.S.
App. LEXIS 17938 (No. 04-11443, unpublished); United States v.
Green, 2005 U.S. App. LEXIS 24480 (No. 04-30795, unpublished);
United States v. Ben, 2005 U.S. App. 23778 (No. 04-50648,
unpublished). Although the record in this case does not include
similar explicit statements as to what the district court would
do under an advisory scheme, it does contain other evidence that
the district court would have imposed the maximum statutory
sentence under either a mandatory or advisory guideline scheme.
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The district court ordered an upward departure in Jones’
case under the authority of U.S.S.G. § 5K2.0. The decision to
depart from a guideline sentence “embodies the traditional
exercise of discretion by the sentencing court.” U.S.S.G. §
5K2.0 Commentary, citing Koon v. United States, 518 U.S. 81
(1996). A court has substantial discretion under the guidelines
to depart from the recommended guideline range. In other words,
an upward departure is in no sense mandatory. Booker only struck
down the mandatory application of the guidelines when
calculations were based on facts not found beyond a reasonable
doubt by a jury or admitted by the defendant. United States v.
McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005). As the facts
relied on by the district court in making the upward departure
were not applied to a mandatory provision of the guidelines,
there is arguably no Booker error.
Whether exercise of a court’s discretion to depart upward is
a decision made under a “mandatory Guidelines regime,” as needed
for Booker error, is a matter of some uncertainty. See United
States v. Vernier, 2005 U.S. App. LEXIS 22049 (11th Cir. 2005),
comparing United State v. May, 413 F.3d 841, 848 (8th Cir.
2005)(stating that it is “unclear” whether a departure within the
district court’s discretion is Booker error), with United States
v. Cunningham, 405 F.3d 497, 504 (5th Cir. 2005)(“To the extent
that [defendant] argues that the court’s upward departure [not
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mandated by the guidelines] violates the Sixth Amendment, he is
correct.”).
We need not decide that question, because even assuming that
Jones can establish Booker error under these circumstances, we
find any error to be harmless. United States v. Rodriguez-
Chavez, 2005 WL 2995594 (10th Cir. 2005)(Assuming arguendo that
defendant’s argument that an upward departure based on prior
convictions violated Booker, and proceeding to find no harmless
error.) There is no argument that the mandatory nature of the
guidelines affected the district court’s sentencing decision in
any way. The district court properly calculated Jones’
guidelines sentence, without objection from Jones, and then
exercised its discretion to depart from the sentence that would
result from a mandatory application of the guidelines. Jones’
only argument under Booker is that the district court’s use of
judge found facts to support the upward departure violates Booker
and Blakely. He makes no argument of Booker error in relation to
the calculation of the base mandatory guideline sentence.
In this aspect, this case is distinguishable from a similar
case decided by the Seventh Circuit. In United States v. Burke,
425 F.3d 400, 416-17 (7th Cir. 2005), the Seventh Circuit found
the government failed to establish harmless error from alleged
Booker error as to a sentence that included an upward departure.
Burke had been convicted of perjury. The guidelines directed the
district court to apply the guideline relevant to the criminal
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offense with respect to which the defendant gave false testimony.
The court stated that the guidelines directed it to apply a
certain cross-referenced guideline that triggered additional
enhancements. The district court then upwardly departed because
the criminal history category under-represented Burke’s criminal
past and likelihood of recidivism. The court sentenced Burke in
the middle of the range resulting from the increased criminal
history category and the enhanced offense level. Burke argued
that his sentence violated Booker, without limiting his argument
to the upward departure as does Jones. Because the district
court’s calculation of Burke’s base guideline sentence, including
the cross-referencing guideline and several enhancements, was
affected by a mandatory application of the guidelines, the
Seventh Circuit found that the government had not established
that the district court would have imposed the same sentence had
the guidelines been merely advisory. Our case differs in two
material respects - the nature of the defendant’s Booker
challenge to his sentence and the fact that the district court in
Jones’ case upwardly departed to the statutory maximum sentence.
The district court imposed the upward departure because
Jones’ case did not involve the mere possession of a firearm by a
convicted felon. The departure reflected the court’s concern
with the seriousness of Jones’ weapon possession while under the
influence of drugs and his pattern of actually using weapons that
he possessed. These are appropriate factors for an upward
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departure and Jones does not assert otherwise. U.S.S.G. §
5K2.0(a)(1)(A), (3). The district court found that an offense
level of 28 appropriately reflected the seriousness of the
circumstances of Jones’ offense. The court also specifically
stated that a six-level upward departure would be insufficient
and that an eight-level departure would be too much.
Under the specific facts of this case, in which the
defendant’s Booker challenge is addressed only to a discretionary
aspect of the sentencing guidelines, we find that the government
has met its burden of establishing beyond a reasonable doubt that
any Booker error did not contribute to the sentence Jones
received. Additionally, the fact that the district court
departed up to the statutory maximum sentence further supports
the conclusion that the district court would have imposed the
same sentence under an advisory sentencing scheme.1
IV.
For the foregoing reasons, Jones’ sentence is AFFIRMED.
1
Jones argument that a retroactive application of Booker’s
remedial holding to his case on remand would violate the Ex Post
Facto clause is foreclosed by this court’s decision in United
States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005).