[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 3, 2005
No. 04-15319
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-CR-00072-WS-L-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY THOMAS DACUS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 3, 2005)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Larry Thomas Dacus appeals his sentence for attempt to possess with intent
to distribute marijuana, in violation of 21 U.S.C. section 846. In his initial brief,
Dacus argued that the district court erred when it denied him a downward
departure based on his substantial rehabilitation efforts after the offense. The
government did not respond to this argument, but conceded error under United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). Dacus then adopted the
argument of the government in his reply brief. Although we ordinarily refuse to
consider an argument not raised in an initial brief, see United States v. Levy, 379
F.3d 1241, 1242-43 (11th Cir. 2004), we consider the argument that Dacus’s
sentence was erroneous under Booker because both parties have joined the issue
without objection. The district court stated at sentencing that if it had the authority
to do so, it would have granted a downward departure from the guideline range for
the rehabilitation efforts of Dacus. Because the district court committed plain error
when it applied the Sentencing Guidelines as mandatory, we vacate and remand for
resentencing.
I. BACKGROUND
Dacus pleaded guilty to attempted possession with intent to distribute
approximately 49 pounds of marijuana. At the sentencing hearing, Dacus moved
for a downward departure under U.S.S.G. section 5K2.0 and argued that he
engaged in substantial drug rehabilitation efforts after the offense. He requested a
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one-level downward departure which would have made him eligible for a split
sentence. Dacus noted that he was not seeking a significantly shorter sentence, but
that he wanted to be able to complete part of his sentence in a halfway house or in
a drug rehabilitation program.
The government argued that Dacus’s case was not so unusual as to take it
outside of the heartland of cases. Dacus replied that his rehabilitation efforts were
not adequately taken into account by the acceptance of responsibility reduction,
and he had not tested positive for drug use since his initial appearance. The court
agreed that Dacus’s efforts were commendable, but stated that it did not have the
authority to grant a downward departure under section 5K2.0. The court further
stated that, if it had the legal authority to grant a departure, it “would certainly
consider it.” The court elaborated, “I will make a recommendation to reward Mr.
Dacus any way I can, make sure that he gets into a facility where he is
appropriately benefitted by his continued drug treatment or . . . whatever facility is
available to insure that Mr. Dacus receives the benefit of his efforts at
rehabilitation, I think, is appropriate under the circumstances.” The court
sentenced Dacus to twelve months and one day imprisonment and three years
supervised release.
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II. DISCUSSION
Under United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), there are
two kinds of sentencing errors: one is constitutional and the other is statutory.
“[T]he Sixth Amendment right to trial by jury is violated where under a mandatory
guidelines system a sentence is increased because of an enhancement based on
facts found by the judge that were neither admitted by the defendant nor found by
the jury.” United States v. Rodriguez, 398 F.3d 1291, 1297 (11th Cir. 2005). In
addition, “[a]s 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.” United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
Because the failure to grant a downward departure is not a constitutional error, we
must consider whether the district court erred in applying the Guidelines as
mandatory.
At sentencing, Dacus did not object to the conclusion of the district court
that it was bound by the Guidelines as mandatory. We “may not correct an error
the defendant failed to raise in the district court unless there is: (1) error, (2) that is
plain, and (3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public reputation of
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judicial proceedings.” Rodriguez, 398 F.3d at 1298 (quotations and citations
omitted). Dacus’s objection is well taken, even under this “circumscribed” form of
review. Id. (quoting United States v. Humprey, 164 F.3d 585, 588 (11th Cir.
1999).
The first prong of the plain error test is easily satisfied. The district court
erred when it sentenced Dacus because it considered the Guidelines to be
mandatory. See Shelton, 400 F.3d at 1330-31. As the Supreme Court explained in
Booker, the Guidelines are properly applied in an advisory fashion.
The second prong of the plain error test is also met. Although the error was
not plain at the time of sentencing, “where the law at the time of trial was settled
and clearly contrary to the law at the time of appeal – it is enough that the error be
‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S.
461, 468, 117 S. Ct. 1544, 1549 (1997). This error is now plain under Booker.
As to the third prong, the burden is on Dacus to demonstrate that the plain
error “affects [his] substantial rights,” and that the error “actually did make a
difference.” Rodriguez, 398 F.3d at 1298. In other words, in post-Booker
sentencing appeals, “in applying the third prong, we ask whether there is a
reasonable probability of a different result if the guidelines had been applied in an
advisory instead of binding fashion by the sentencing judge in this case.” Id. at
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1300. Dacus established that the error affected his substantial rights.
At the sentencing hearing, the district court stated that Dacus’s efforts at
rehabilitation were commendable, and it would “certainly consider” granting the
downward departure if it had the legal authority to do so. That downward
departure would have made Dacus eligible for a split sentence. The court also
stated that it would “make a recommendation to reward Mr. Dacus any way . . . ,
make sure that he gets into a facility where he is appropriately benefitted by his
continued drug treatment or . . . whatever facility is available to insure that Mr.
Dacus receives the benefit of his efforts at rehabilitation.” These comments
evidence that there is a reasonable probability the district court would have
imposed a more lenient sentence if the court had not considered itself bound by the
Guidelines.
“Finally, under the fourth prong of plain-error review, we consider whether
the ‘plain error’ at sentencing ‘seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.’” Shelton, 400 F.3d at 1333 (citations omitted).
We conclude that the fourth prong is established.
III. CONCLUSION
We VACATE Dacus’s sentence and REMAND to the district court for
resentencing.
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