United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30079
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.
PER CURIAM:
Defendant-Appellant Terry Smith appeals her sentence for
making a false statement to a federal agent, to which crime she
pleaded guilty. Relying on the Supreme Court’s decision in United
States v. Booker,1 she contends that the district court erred in
enhancing her sentence under the then-mandatory Sentencing
Guidelines (“U.S.S.G.”) based on facts found by the judge, but
which were neither admitted by her nor found by a jury beyond a
reasonable doubt. As we determine that the government has met its
burden of showing that the error was harmless in that it did not
affect Smith’s sentence, we affirm.
1
125 S. Ct. 738 (2005).
I. FACTS AND PROCEEDINGS
When agents of the Federal Bureau of Investigation (“FBI”)
executed a search warrant at the Bossier City home of Smith and her
husband, Cecil Pierre, as part of an ongoing criminal
investigation, the latter falsely identified himself as “Joshua
Smith,” which is the name of the couple’s second child. Smith
expressly confirmed to the agents that this was in fact her
husband’s name. Once Pierre was booked and fingerprinted, the
agents discovered his true identity.
The investigation concerned an alleged criminal conspiracy
involving 43 accounts at E*Trade Financial and the ATM cards linked
to those accounts, which were issued in various names and delivered
to several different addresses, including to a mail box allegedly
opened and accessed by Smith at the Packages Plus store in Bossier
City. Pierre confessed to the crimes alleged, but insisted that
his wife unwittingly participated without knowledge of the
fraudulent nature of the scheme. The FBI investigation revealed,
however, that the mail box at Packages Plus had been opened by
Smith, who had confirmed her identity with her driver’s license and
social security card, and that she was the individual who received
mail from the box. The phone number Smith provided on the
application for the box was the same as that used to access the
E*Trade accounts. Moreover, when FBI agents conducted their search
of the couple’s home they discovered in plain view, scattered
throughout the house, several pieces of mail from E*Trade as well
as debit and credit cards issued in various names.
2
In June of 2004, a federal grand jury returned a 51-count
indictment against Smith and Pierre, charging them with mail fraud,
wire fraud, conspiracy, and false statements to a federal agent.
Pursuant to a written plea agreement entered into the following
month, Smith pleaded guilty to Count 50, which charged her with
making false statements to a federal agent in violation of 18
U.S.C. § 1001. This crime carries a statutory penalty of up to
five years’ imprisonment for false statements not involving
international or domestic terrorism.2 The district court accepted
Smith’s guilty plea.
The base offense level for the false statement to which Smith
pleaded guilty was 6,3 but the pre-sentence investigation report,
which considered all allegations in the indictment, recommended a
total offense level of 15. In combination with a criminal history
category of II, this produced a Guideline imprisonment range of 21
to 27 months. In December of 2004, the district court entered a
sentence of 24 months’ imprisonment to be followed by 36 months of
supervised release. The court further ordered Smith to make
restitution to E*Trade of $20,382.37. In determining the sentence,
the district court expressly applied the specific offense
characteristic of “jointly undertaken criminal activity” provided
in U.S.S.G. § 1B1.3(a)(1)(B). Citing Blakely v. Washington,4 Smith
objected to the enhancement based on her role in the alleged
2
18 U.S.C. § 1001(a) (2005).
3
U.S.S.G. § 2B1.1(a)(2).
4
542 U.S. 296 (2004).
3
conspiracy, which she had not admitted and which had not been found
by a jury beyond a reasonable doubt. The district court overruled
the objection and Smith timely filed a notice of appeal the same
month.
Following the Supreme Court’s decision in Booker, which was
issued the next month, Smith filed a motion under 28 U.S.C. § 2255
to vacate, set aside, or correct her sentence, asserting Booker
error. Her direct appeal in this court was stayed pending the
district court’s resolution of the § 2255 motion.5 In May of 2005,
the district court denied Smith’s § 2255 motion, stating:
It is clear that in spite of Booker, this court was free
to consider aggravating factors without violating Smith’s
Sixth Amendment rights. The Mares decision demonstrates
this court’s ability to consider those factors it deems
relevant, including the amount of money fraudulently
obtained from the victims, and to impose a sentence upon
Smith that, among other things, reflects the seriousness
of the offense, promotes respect for the law, provides
just punishment for the offense, serves as an adequate
deterrent of criminal conduct, protects the public from
further crimes committed by the defendant, and satisfies
the need to provide restitution to any victim of the
offense. See 18 U.S.C. § 3[5]53(a). This court’s decision
to sentence Smith to a twenty-four month term of
imprisonment and to order the payment of restitution was
well within its authority, and in no way violated Smith’s
rights under the Sixth Amendment.6
After the district court’s denial of her § 2255 motion, Smith
renewed her previously stayed direct appeal in this court.
II. ANALYSIS
A. Standard of Review
5
Order of March 16, 2005.
6
Memorandum Ruling denying § 2255 motion at 4 (May 2, 2005)
(modified to correct citation to 18 U.S.C. § 3553(a), cited as §
3353(a) in original).
4
When a claim of Booker error is preserved by objection in the
district court,7 we review the sentence for harmless error.8 The
government bears the “burden of showing beyond a reasonable doubt
that the error did not affect the outcome of the district court
proceedings, i.e., that the district court would have imposed the
same sentence absent the error.”9 In other words, Booker error is
harmless error if it is shown “beyond a reasonable doubt that the
district court would not have sentenced [the defendant] differently
had it acted under an advisory Guidelines regime.”10
B. Merits
Although the district court committed Booker error in
sentencing Smith,11 that error was harmless and therefore not
reversible error. In its brief on appeal the government quotes the
district court’s Memorandum Ruling denying Smith’s § 2255 motion to
vacate, also quoted above. This post-Booker statement by the
district court demonstrates beyond a reasonable doubt that it would
have entered the same sentence under an advisory Guidelines
7
A properly raised Blakely objection is sufficient to
preserve Booker error on appeal. United States v. Saldana, 427
F.3d 298, 314 n.67 (5th Cir. 2005).
8
United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
9
Id. at 286.
10
United States v. Akpan, 407 F.3d 360, 377 (5th Cir. 2005).
11
Under Booker, when a sentencing judge bound by mandatory
Guidelines increases the defendant’s sentencing range based on
facts neither found by a jury beyond a reasonable doubt nor
admitted by the defendant —— as in this case —— the sentence
violates the defendant’s Sixth Amendment right to a jury trial.
125 S. Ct. at 756.
5
regime.12 Although the court did not expressly state that the
sentence would have been the same, the indisputable message is that
the court stands by its original sentence, even after Booker.
Furthermore, nothing in the record on appeal even suggests a
different result. To require district judges to make talismanic
incantations in cases like Smith’s —— when the sentencer’s intent
is otherwise apparent and unambiguous —— would be to elevate form
over substance.
III. CONCLUSION
The government has met its burden of showing that the Booker
error in Smith’s sentencing was harmless beyond a reasonable doubt,
in that the district court would have imposed the same sentence
under an advisory Guidelines regime. Smith’s sentence is,
therefore,
AFFIRMED.
12
Even though this case is perhaps atypical by virtue of the
district judge’s post-Booker statement having been made in the
context of an intervening § 2255 motion, we perceive no meaningful
difference between such a statement in this setting and one made on
remand. See United States v. Miller, 406 F.3d 323, 337 (5th Cir.
2005) (“Because Booker renders the guidelines advisory, if we were
to remand under Booker the district court would have the discretion
to impose the same sentence by giving consideration to the
guidelines and the other factors enumerated in 18 U.S.C. §
3553(a).”).
6