[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 16, 2005
No. 04-13855
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-80022-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY RICHARDSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 16, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Gregory Richardson appeals his 162-month sentence, imposed after he pled
guilty in a written plea agreement to one count of bank robbery, in violation of 18
U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2. On appeal, Richardson argues that the
district court sentenced him under a mandatory Sentencing Guidelines scheme and
based on facts not charged in the indictment or admitted by him in his plea
agreement, in violation of Blakely v. Washington, 542 U.S. ---, 124 S. Ct. 2531,
159 L. Ed. 2d 403 (2005), and United States v. Booker, 543 U.S. ---, 125 S. Ct. 738
(2005).1
Because Richardson raised his Blakely/Booker claim in the district court, he
is entitled to de novo review. See United States v. Paz, 2005 WL 757876, *2 (11th
Cir. Apr. 5, 2005); United States v. Candelario, 240 F.3d 1300, 1305 (11th Cir.
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He also challenges the district court’s enhancement of his offense level under U.S.S.G. §
3C1.2 based on a finding that he recklessly created a risk of death or serious bodily harm to another.
He asserts that he did not participate in the conduct that the district court characterized as reckless
endangerment because, although he was a passenger in the get-away car, he was not the driver and,
thus should not be held responsible for the driver’s operation of the vehicle at a high rate of speed,
prior to crashing into two other cars. From our review of the sentencing transcript, Richardson
waived this claim at the sentencing hearing. Upon receipt of the PSI, Richardson objected to the
factual basis for the § 3C1.2 enhancement. However, at the subsequent sentencing hearing, he said
he objected to the enhancement based only on Blakely. Where a defendant knowingly waives his
objections at sentencing, we will not review the objection for the first time on appeal. See United
States v. Masters, 118 F.3d 1524, 1526 (11th Cir. 1997) (affirming and declining to apply plain-error
review where defendant knowingly waived objection to upward departure, even where district court
had erred in imposing departure); cf. United States v. Olano, 507 U.S 725, 733, 113 S. Ct. 1770,
1777, 123 L. Ed. 2d 508 (1992) (distinguishing waiver from forfeiture and noting that forfeiture is
the failure to make the timely assertion of a right whereas waiver is the “intentional relinquishment
or abandonment of a known right” and that mere forfeiture, as opposed to waiver, does not
extinguish an “error” under Fed. R. Crim. P. 52(b)); United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002) (stating that “a waived issue ordinarily cannot be resurrected on appeal” and
concluding that “[a] party who identifies an issue, and then explicitly withdraws it, has waived the
issue”). Accordingly, we refuse to consider this argument now.
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2001) (reviewing preserved Apprendi2 claim). Under this standard, we look first to
whether there was error and, if so, we undertake a harmless error analysis. Paz,
2005 WL 757876 at *2; Candelario, 240 F.3d at 1307; United States v. Nealy, 232
F.3d 825, 829 (11th Cir. 2000) (reviewing preserved constitutional challenge to a
sentence de novo, but stating we “will reverse or remand only for harmful error”).
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Id. at 490, 120 S. Ct. at 2362-63. The Court subsequently applied the
Apprendi rule in the context of Washington State’s sentencing guideline scheme,
clarifying that “the ‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant. In other words, the relevant ‘statutory
maximum’ is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any additional
findings.” Blakely, 542 U.S. at ___, 124 S. Ct. at 2537 (citations omitted)
(emphasis in original).
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Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
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Most recently, in Booker, the Supreme Court found “no distinction of
constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue” in Blakely. See 125 S. Ct. at 749. The Court
held that the mandatory nature of the Guidelines rendered them incompatible with
the Sixth Amendment’s guarantee to the right to a jury trial. Id. at 749-52. As we
recently observed, “[t]his constitutional holding ‘means that it is no longer possible
to maintain the judicial factfinding that Congress thought would underpin the
mandatory Guidelines system that it sought to create.’” United States v. Garcia, ---
F.3d ---, 2005 WL 845532, at *12 (11th Cir. Apr. 13, 2005) (quoting Booker, 125
S. Ct. at 757).
First, Richardson argues that the district court violated Blakely (now
Booker) by making the following factual findings to support enhancing his
sentence: (1) he had taken the property of a financial institution; (2) he had
participated in a conspiracy involving a firearm; and (3) he had recklessly created
substantial risk of death or serious bodily harm -- that were not charged in the
indictment or admitted by him. We disagree.
With respect to the first two of these enhancements, the indictment to which
Richardson pled guilty charged Richardson with taking approximately $52,758
from a bank, during which a firearm was used to assault and put in jeopardy the
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life of another person. Moreover, as part of his guilty plea, Richardson admitted
that he had robbed from a bank approximately $52,758, while his codefendant
stayed in the lobby with a firearm. Accordingly, the district court did not make
findings on additional facts to support a sentencing enhancement, and thus did not
commit Sixth Amendment error, within the meaning of Blakely.
As for the reckless-endangerment-during-flight enhancement, although the
indictment did not allege, and Richardson did not admit as part of his guilty plea
to, the facts supporting the enhancement, Richardson at sentencing withdrew any
fact-based objections to this enhancement and consequently the court did not
engage in any judicial factfinding on this issue. Thus, no Sixth Amendment
violation occurred. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir.
2005) (holding that there was no Sixth Amendment violation where defendant did
not raise any objections to the factual statements in the PSI and thus admitted to
the facts that enhanced his sentence). On this record, there was no impermissible
judicial factfinding in violation of the Sixth Amendment.
Although there was no constitutional Booker error here, Richardson was
sentenced under the pre-Booker mandatory Sentencing Guidelines. The district
court followed the correct sentencing procedure when it sentenced Richardson, but
“the Supreme Court has now excised the mandatory nature of the Guidelines in
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Booker.” Shelton, 400 F.3d at 1330 (reviewing Booker claim for plain error). In
Shelton, we concluded that “it was [non-constitutional] Booker error for the district
court to sentence Shelton under a mandatory Guidelines scheme, even in the
absence of a Sixth Amendment enhancement violation.” Id. (citing United States
v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005) (“the [non-constitutional
Booker] error is the mandatory nature of the guidelines once the guidelines range
has been determined”)). “As a result of Booker’s remedial holding, Booker error
exists when the district court misapplies the Guidelines by considering them as
binding as opposed to advisory.” Shelton, 400 F.3d at 1331.
Here, we find Booker error based on the remedial holding of the case
because the court treated the Guidelines range as mandatory. However, after our
de novo review of the record, including a careful reading of the transcript of the
sentencing hearing, we are satisfied that the non-constitutional error did “not affect
substantial rights,” and, accordingly, pursuant to Rule 52(a), the error “shall be
disregarded.” Fed. R. Crim. P. 52(a). A non-constitutional error is harmless “if,
viewing the proceedings in their entirety, a court determines that the error did not
affect the [outcome], or had but very slight effect.” United States v. Hornaday, 392
F.3d 1306, 1315 (11th Cir. 2004) (internal quotation marks and citations omitted).
“If one can say ‘with fair assurance . . . that the judgment was not substantially
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swayed by the error,’ the judgment is due to be affirmed even though there was
error.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 764 66 S. Ct. 1239,
1248, 90 L. Ed. 1557 (1946)); see also United States v. Frazier, 387 F.3d 1244,
1266 n.20 (11th Cir. 2004) (en banc) (“Errors do affect a substantial right of a
party if they have a ‘substantial influence’ on the outcome of a case or leave ‘grave
doubt’ as to whether they affected the outcome of a case.” (quoting Kotteakos, 328
U.S. at 764-65, 66 S. Ct. at 1248)).
At the sentencing hearing, the district judge indicated that he believed the
Guidelines eventually would be found unconstitutional, but that he was bound by
the decisions of the Supreme Court and this Court, neither of which, as of the date
of Richardson’s sentencing, had held the Guidelines were unconstitutional. After
making this observation, and considering the parties’ arguments on the appropriate
sentence, the district judge imposed a Guidelines sentence of 162 months’
imprisonment, which was at the high end of the Guidelines range, observing that it
did so “based upon the violent nature of the offense.” The judge also imposed “an
alternate sentence if the Sentencing Guidelines are held to be unconstitutional”--
the alternate sentence was also 162 months’ imprisonment.
In short, based on our thorough reading of the sentencing transcript, we can
find no indication that the district court would have imposed a different sentence
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under the post-Booker advisory scheme. In fact, the district court’s imposition of
an alternate sentence indicates the exact opposite -- that it would exercise its
discretion to impose the same sentence if the Guidelines were held to be
unconstitutional. Cf. United States v. Paz, __ F.3d__, 2005 WL 757876 (11th Cir.
Apr. 5, 2005) (holding that Booker error in enhancing defendant’s sentence under a
mandatory guidelines system was not harmless beyond a reasonable doubt where
the sentencing transcript indicated that defendant’s sentence would have been
shorter had the district court used the guidelines in an advisory fashion). On this
record, the non-constitutional Booker error was harmless in that it did not affect
substantial rights under Rule 52(a) because the error did not affect the outcome of
the proceedings or, even if it did, had “but very slight effect.” Hornaday, 392 F.3d
at 1315. Accordingly, we can say “with fair assurance . . . that the judgment was
not substantially swayed by the error,” and affirm Richardson’s sentence. Id.
(quotation omitted).
AFFIRMED.
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