United States v. Woods

United States Court of Appeals
Fifth Circuit

FILED
IN THE UNITED STATES COURT OF APPEALS February 13, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 04-11058
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGORY WAYNE WOODS,

Defendant-Appellant.

__________________

Appeal from the United States District Court
For the Northern District of Texas
__________________

Before DAVIS, SMITH and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Gregory Wayne Woods pleaded guilty to a single count of

bank fraud in violation of 18 U.S.C. § 1344. He appeals his

46-month sentence pursuant to United States v. Booker, 543

U.S. 220 (2005). Because Woods preserved his claim of error

and the Government cannot demonstrate the error was

harmless, we VACATE Woods’ sentence and REMAND to the

district court for re-sentencing.

I.
On May 7, 2004, Woods pleaded guilty to one count of

bank fraud, prohibited by 18 U.S.C. § 1344. A pre-sentence

1
report (“PSR”) calculated Woods’ total offense level at 19,

including a seven-level increase because the amount of loss

was between $120,000 and $200,000, a two-level increase

because the offense involved more than minimal planning, and

a four-level increase because of Woods’ role as an organizer

or leader who recruited and instructed participants in a

criminal activity that involved five or more participants.

A total offense level of 19 combined with a criminal history

category III resulted in a recommended Sentencing Guideline

range of 37 to 46 months of imprisonment. In addition, the

PSR recommended an upward departure because Woods’ criminal

history score under-represented the seriousness of his

criminal history or the likelihood that he would commit

additional crimes.

Woods objected to the PSR on the basis of Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), and Blakely v.

Washington, 542 U.S. 296 (2004), arguing that the findings

which resulted in enhancements totaling 13 levels were based

on facts to which he had not admitted nor had been found by

a jury. Nonetheless, the district court adopted the factual

findings of the PSR and concluded that the 13 level

enhancement was appropriate.1 The court did not adopt the

1
Woods objected to the facts set forth in the PSR supporting
the enhancements to which he did not admit. The district
court overruled the objection. Woods does not challenge the

2
PSR’s recommendation to depart upwardly, however, but

stated: “Well, it’s a close call, but I’m not going to

upwardly depart in this case. I am going to impose a

sentence at the top of the guideline range.” The district

court sentenced Woods to 46 months in prison, the top of the

applicable guideline range including the enhancements. The

court also ordered Woods’ sentence to run consecutively to

any sentence imposed by the state court in an unrelated

criminal proceeding then pending against Woods’, ordered

Woods to pay $129,324 in restitution, and ordered Woods to

serve three years of supervised release.

Woods now appeals his sentence, arguing that the

Supreme Court’s decision in United States v. Booker, 125 S.

Ct. 738 (2005), confirms that the sentence imposed upon him

by the district court violated the 6th Amendment. The

Government concedes, as it must, that the district court

erred by enhancing Woods’ offense level under the pre-Booker

mandatory guidelines system based on facts to which Woods

did not admit and not found beyond a reasonable doubt by a

jury. The Government argues, however, that such an error

was harmless, based principally on the district court’s

sufficiency of the evidence for the court's factual findings
or otherwise object to the enhancements themselves on appeal.

3
decision to impose a sentence at the top of the applicable

guidelines range.

II.
When a Sixth Amendment claim under Booker “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.” United States v. Mares, 402 F.3d 511,

520 n. 9 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005); see

also United States v. Olano, 507 U.S. 725, 734 (1993)

(noting that harmless error standard applies when defendant

makes timely objection to error).

“Harmless error is ‘[a]ny defect, irregularity, or

variance that does not affect substantial rights’ of the

defendant, and ‘arises when the mistake fails to prejudice

the defendant.’” United States v. Akpan, 407 F.3d 360, 376

(5th Cir.2005) (quoting FED. R. CRIM. P. 52(a)). “[T]he

government must bear the burden of demonstrating that the

error was harmless by demonstrating beyond a reasonable

doubt that the federal constitutional error of which the

defendant complains did not contribute to the sentence that

he received.” Id. at 377 (citations omitted); see also

Olano, 507 U.S. at 734 (noting that the inquiry to determine

4
prejudice is the same between plain error and harmless

error, but that the defendant, rather than the government,

bears the burden of persuasion with respect to prejudice

under plain-error review); Chapman v. California, 386 U.S.

18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that

“before a federal constitutional error can be held harmless,

the court must be able to declare a belief that it was

harmless beyond a reasonable doubt”). Put another way, an

error is deemed harmless only if the government proves

beyond a reasonable doubt that it did not affect the outcome

of the district court proceedings. See United States v.

Pineiro, 410 F.3d 282, 285(5th Cir. 2005).

A.

The Government points to the fact that the district

court sentenced Woods to 46 months of imprisonment, the top

of the guidelines-determined range, in an attempt to meet

its burden under the harmless error standard. This court has

previously addressed the effect of maximum and minimum

sentences within the guidelines-determined range only in the

context of plain-error review. In United States v.

Rodriguez-Gutierrez, 428 F.3d 201 (5th Cir. 2005), this

court observed that prior cases had given varying weight to

the relationship between the actual sentence imposed and the

5
range of sentences provided by the Guidelines, and noted

that “[s]entences that fall at the absolute maximum of the

Guidelines provide the strongest support for the argument

that the judge would not have imposed a lesser sentence.”

Id. at 204. Similarly, “sentences following at the absolute

minimum of the Guidelines provide the strongest support for

the argument that the judge would have imposed a lesser

sentence.” Id. at 205. However, we cautioned, “we do not

suggest that a defendant sentenced at the absolute maximum

of the range provided by the Guidelines will never be able

to show that his substantial rights were affected.” Id.2

2
Other Circuits have also found a sentence imposed at the top
of the Guidelines-determined range to be persuasive evidence
against substantial prejudice under plain-error review. See
United States v. Brennick, 405 F.3d 96, 101-02 (1st Cir. 2005)
(“Given the court's exercise of discretion to sentence at the
most severe end of the range and its assertion that it would
have given a more severe sentence if it had the latitude to do
so, we can see no reasonable probability that the court would
have sentenced more leniently had it understood that it was
not constrained by the Guidelines.”); United States v.
Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir. 2005) ("When,
under a mandatory guidelines regime, a sentencing court has
elected to sentence the defendant substantially above the
bottom of the range, that is a telling indication that the
court, if acting under an advisory guidelines regime, would in
all likelihood have imposed the same sentence."); United
States v. Mozee, 405 F.3d 1082, 1091-92 (10th Cir. 2005)
(“Because the court decided to maximize punishment rather than
exercise leniency where it had discretion, there is no basis
for us to assume Mr. Mozee would receive a lesser sentence if
he were resentenced under a discretionary sentencing regime in
which the district court is required to ‘consider’ the
guidelines when it exercises its discretion.”), cert. denied,
126 S. Ct. 253 (2005).

6
 The imposition of a sentence at the maximum end of the

Guidelines-determined range, however, is less persuasive

when considered under the harmless-error standard. When a

defendant fails to preserve Booker error with an objection

in the district court, the sentence imposed is reviewed for

plain error, and the burden is on the defendant to

demonstrate “a probability sufficient to undermine

confidence in the outcome.” Id. at 203. When reviewing

for harmless error, however, the Government bears the burden

of proving beyond a reasonable doubt that the Booker error

did not affect the outcome of the district court

proceedings. See Pineiro, 410 F.3d at 285.

Although a judge sentencing a defendant at the top of

the applicable range under the pre-Booker sentencing regime

may be enough to prevent that defendant from undermining

confidence in the outcome when reviewed for plain error, it

does not follow that the same sentence is enough to satisfy

the burden on the Government to prove beyond a reasonable

doubt that the sentence would not have been different under

the post-Booker advisory regime. Instead, the Government

must shoulder the heavy burden of demonstrating that the

district court would not have imposed a different sentence

under the advisory regime—in essence, the Government must

prove a negative. Such proof is certainly not impossible,

7
but where the Government’s principal evidence is a sentence

at the top of the range determined by the Guidelines under a

mandatory sentencing regime, the Government has not carried

its burden.

Our conclusion that a sentence imposed at the top of

the Guidelines-determined range might be sufficient to

prevent a defendant from prevailing under plain-error

review, but not sufficient to demonstrate that a Booker

error was harmless beyond a reasonable doubt is consistent

with the law of at least two other Circuits. In United

States v. Cain, --- F.3d ----, No. 04-15754, 2005 U.S.App.

LEXIS 28882, at *5-9 (11th Cir. Dec. 29, 2005), the Eleventh

Circuit concluded that Booker error was not harmless even

though the district court had imposed a sentence at the top

of the applicable guidelines range.

Similarly, in United States v. Lake, 419 F.3d 111 (2d

Cir. 2005), the Second Circuit addressed the argument made

by the Government that a sentence well above the bottom of

the Guidelines-determined range demonstrated that any Booker

error was harmless beyond a reasonable doubt. The court

disagreed, and found that such an argument overlooks three

important aspects of sentencing under the post-Booker

regime:

8
 First, the fact that a judge selects a sentence
within a guideline range that the judge thought he
was required to apply does not necessarily mean
that the same sentence would have been imposed had
the judge understood the Guidelines as a whole to
be advisory. The applicable guideline range
provides the frame of reference against which the
judge chooses an appropriate sentence. In this
case, for example, Judge Block might have thought
that once the Commission specified the range it
deemed appropriate for offense conduct like
Lake's, the details of Lake's offense conduct were
sufficiently serious to warrant punishment
somewhat high in that range, but he might also
have thought that a somewhat lower sentence would
have been appropriate if he was selecting a
sentence without regard to a Commission-prescribed
range. Second, although even before Booker, a
sentencing judge was obliged to consider all the
factors set forth in 18 U.S.C. § 3553(a), the
required use of one of those factors--the
Guidelines--rendered of “uncertain import” the
significance of the other factors. Now, without
the mandatory duty to apply the Guidelines,
consideration of the other section 3553(a) factors
“acquires renewed significance,” and might result
in a different sentence. Third, absent the
strictures of the Guidelines, counsel would have
had the opportunity to urge consideration of
circumstances that were prohibited as grounds for
a departure.
Id. at 114. As the Second Circuit stated in Lake, we cannot

say it is likely that the district court in this case would

have imposed a different sentence upon Woods under the post-

Booker sentencing regime, “but the Government has not shown

that the possibility is so remote as to render the

sentencing error harmless.” Id.3

3
The Tenth Circuit has disagreed with this approach, and in
United States v. Riccardi, that court held that a
constitutional Booker error was harmless where the district
court sentenced at the top of the range. See 405 F.3d 852,

9
 B.

The Government next argues that the district court’s

order that the federal sentence imposed run consecutively

with any sentence imposed in Woods’ pending state criminal

proceedings demonstrates that the Booker error was harmless.

This court has recognized that the imposition of consecutive

sentences may, under some circumstances, demonstrate that a

Booker error was indeed harmless. In an unpublished

decision, we determined that Booker error was harmless where

the sentencing court expressly refused to run the

defendant’s federal Guidelines sentence with his previously

imposed state sentence. United States v. Prones, 145 Fed.

Appx. 481, 482 (5th Cir. 2005) (unpublished); see also

United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005)

(identifying imposition of consecutive sentences as one of

only two circumstances in which this court has found Booker

error to be harmless).

874-75 (10th Cir. 2005), cert. denied, 126 S. Ct. 299 (2005).
The Tenth Circuit’s decision in Riccardi, however, provides
little analysis in support of this conclusion, instead relying
on the Sixth Circuit opinion in United States v. Bruce, an
opinion that concludes only that a sentence at the top end of
the Guidelines-determined range was probative under the plain-
error standard, not the harmless error standard. Moreover,
the Sixth Circuit’s opinion on these grounds in Bruce was
later vacated, and the defendant’s sentence vacated and
remanded for resentencing. See U.S. v. Bruce, 396 F.3d 697,
720 (6th Cir. 2005), vacated, 405 F.3d 1034 (6th Cir. Apr 07,
2005). We find the Tenth Circuit’s approach less persuasive
than that followed by the Second Circuit.

10
 However, whether imposition of consecutive sentences is

sufficient to demonstrate that a Booker error is harmless is

a fact-sensitive inquiry that must examine the relationship

between the two sentences imposed. In this case, Woods’ PSR

reveals that the charges pending against him in state court

were unrelated to the federal charges, based on entirely

unrelated conduct occurring during a different time period.

This Court has previously said that “consecutive sentencing

is an appropriate mechanism for imposing distinct punishment

for separate criminal acts, and that a defendant has no

right to have concurrent sentences imposed for two totally

unrelated offenses.” United States v. Olivares-Martinez,

767 F.2d 1135, 1137 (5th Cir. 1985) (citations omitted).

Where the imposition of consecutive sentencing is based

or appears to be based on the unrelated federal and state

charges, we decline to ascribe any motivation to the

district court other than adherence to the default rule that

totally unrelated crimes should ordinarily receive distinct

punishment. The mere imposition of consecutive sentences

for unrelated crimes has little or no probative value

tending to demonstrate that the Booker error in this case

was harmless.

C.

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 The Government also points to the fact that the

district court considered and narrowly rejected an upward

departure based on the recommendation of the PSR.4 The fact

that the district court carefully weighed the recommendation

of the PSR to impose an upward departure, and chose not to

do so, is not a factor which proves beyond a reasonable

doubt that the court’s Booker error was harmless. The court

did not impose such an upward departure, and his decision

not to do so does not give us confidence that the district

court would have imposed an identical sentence under the

post-Booker sentencing regime.5

D.

4
This recommended departure was based on U.S.S.G. § 4A1.3,
p.s., which provides that if “reliable information indicates
that the criminal history category does not adequately reflect
the seriousness of the defendant’s past criminal conduct or
the likelihood that the defendant will commit other crimes,
the court may consider imposing a sentence departing from the
otherwise applicable guideline range.”
5
Indeed, this court has noted that even a departure actually
imposed by the district court in some cases may not be enough
to demonstrate that a Booker error was harmless beyond a
reasonable doubt. See United States v. Garza, 429 F.3d 165,
171 (5th Cir. 2005) (“Yet, even a discretionary departure
decision is informed by the Guidelines and ‘thus sheds little
light on what a sentencing judge would have done knowing that
the guidelines were advisory.’”) (quoting United States v.
Schlifer, 403 F.3d 849, 854 (7th Cir. 2005)); see also Burke
v. United States, 425 F.3d 400, 417 (7th Cir. 2005). Because
the district court declined to depart upwardly, we need not
address that question in this case.

12
 Finally, the Government argues that the district

court’s Booker error is harmless here because there is no

basis in the record for concluding that Woods would have

received a lesser sentence if the district court had

proceeded under advisory guidelines. This argument,

however, misconceives the burden of proof where the

defendant preserves the Booker error with an objection, as

Woods did here. It is the Government's burden, not Woods’,

to prove that the sentence imposed would be the same. This

court previously rejected similar arguments from the

Government in United States v. Pineiro, 410 F.3d 282, 285

(5th Cir.2005) and United States v. Lopez-Urbina, --- F.3d -

--, 2005 WL 1940118, *12 (5th Cir. Aug. 15, 2005), cert.

denied 126 S. Ct. 672 (2005). In Pineiro, this court

stated:

Although this argument would be persuasive under
plain-error review, this argument fails to show
that the preserved error was harmless. It is the
government that must show that the sentencing
judge would have imposed the same sentence under
an advisory sentencing scheme. The judge's silence
as to whether or not he would have imposed a
different sentence under an advisory regime does
not satisfy this burden. If we were to accept this
argument to find that the error was harmless, we
would effectively be relieving the government of
its burden and placing it on the defendant.
Pineiro, 410 F.3d at 286. As in Pineiro, the Government in

this instance has the burden to prove that the district

13
court's error was harmless by showing that the district

court would have imposed the same sentence under the post-

Booker advisory regime. Woods’ inability to point to

evidence in the record that the district court would have

imposed a different sentence is irrelevant under harmless

error analysis. Because it is unclear whether the district

court would have imposed the same sentence, the error cannot

be considered harmless.

III.
The arguments made by the government are insufficient

to demonstrate that the Booker error in this case was

harmless. The only factor tending to show that that the

district court might have imposed the same sentence under

the post-Booker sentencing regime is the imposition of a

sentence at the top of the Guidelines range. However, for

reasons discussed above, such a sentence is insufficient to

demonstrate that the error was harmless. None of the other

factors to which the government points have probative value,

and therefore, even taken cumulatively, fail to satisfy the

government’s burden. We therefore conclude that the

government has failed to meet its burden of showing beyond a

reasonable doubt that the district court would have imposed

the same sentence under the post-Booker advisory sentencing

14
regime. Thus, Woods is entitled to resentencing in

accordance with Booker.

For the reasons set forth above, we vacate Woods’

sentence and remand to the district court for resentencing

consistent with Booker.

VACATED and REMANDED.

15