United States v. Anderson

United States Court of Appeals
For the First Circuit

No. 04-2709

UNITED STATES OF AMERICA,

Appellee,

v.

PAUL M. ANDERSON,

Defendant, Appellant.

APPEAL FORM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Campbell and Bowman,* Senior Circuit Judges,
and Lipez, Circuit Judge.

Edward E. Eliot on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula
Silsby, United States Attorney, was on brief, for appellee.

June 29, 2006

*
Of the Eighth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Appellant Paul M. Anderson

challenges his sentence after pleading guilty to charges of

distributing and possessing with intent to distribute cocaine and

cocaine base. The district court sentenced Anderson to 57 months

in prison, with concurrent terms of four years of supervised

release, and a $600 mandatory penalty. Anderson argues that the

district court erred by applying a two-level sentencing enhancement

for firearm possession under the sentencing guidelines. He also

challenges his sentence under United States v. Booker, 543 U.S. 220

(2005), which was decided after the court sentenced Anderson.

While we reject his argument that there was error in the court's

application of a guidelines enhancement, we remand his case for re-

sentencing under Booker. The government had the burden of

demonstrating that the application of the mandatory sentencing

guidelines by the district court was harmless error. It has not

done so.

I.

On November 14, 2003, a confidential informant told drug

agents that Anderson had agreed to sell the informant cocaine at

Anderson's house later that day. The agents followed the informant

to Anderson's house, where Anderson sold him cocaine. Over the

next four weeks, the informant made several additional controlled

buys of cocaine and crack cocaine from Anderson in his house. On

January 7, 2004, agents searched Anderson's house pursuant to a

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warrant and seized several baggies, each of which contained

cocaine. During the search, agents also seized a loaded Smith and

Wesson 9mm semi-automatic handgun, found in the living room along

with a ledger recording money owed to Anderson. The agents

arrested Anderson.

On August 26, 2004, Anderson appeared in district court

and pled guilty to a six-count indictment. Counts I through III

and VI charged him with distributing and possessing with intent to

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C). Counts IV and V alleged distribution and possession

with intent to distribute more than 5 grams of cocaine base in

violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B).

The pre-sentence investigation report ("PSI") found a

base offense level of 28 and a Criminal History of I. The PSI then

recommended a two-level reduction for the defendant's acceptance of

responsibility and reported that the government would recommend a

further one-level reduction. The PSI also recommended a two-level

enhancement for firearm possession. The PSI recommended against a

"safety valve" reduction. The total adjusted offense level in the

PSI was 27, yielding an initial guidelines sentencing range of 70-

87 months.

The PSI also noted that Anderson and his mother stated

that Anderson had been dealing with serious mental health problems

since childhood. While on pretrial supervision, Anderson met with

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Dr. Jeremy Spiegel, a psychiatrist, who observed symptoms of

multiple anxiety disorders, including obsessive-compulsive

disorder, panic disorder with agoraphobia, anxiety, and social

anxiety. The PSI noted that Anderson might request a downward

departure based on his mental health problems.

Anderson objected to the PSI. He disputed the

recommended two-level firearm enhancement, stating that the gun was

not used in connection with the crime because "this firearm was

purchased as personal protection after a series of armed home

invasions in Sanford, Maine in late 2000." He also argued that his

possession of a gun did not preclude the benefits of the "safety

valve" reduction.

At the sentencing hearing, the government agreed that the

defendant would be eligible for the safety valve reduction because,

it stated, "[the prosecution] would have to provide the court with

some evidence that the gun was used in connection with the offense,

which [the prosecution] ha[s] no such evidence." The district

court applied the two-level safety valve reduction.

The government then argued that, notwithstanding the

application of the safety valve reduction, the two-level firearm

enhancement should apply. The defendant challenged the application

of the enhancement, arguing that, under Blakely v. Washington, 542

U.S. 296 (2004), the government had to prove that the gun was

actually connected with the offense in order for the firearm

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enhancement to apply. Therefore, according to the defendant, the

enhancement was inapplicable because the government stated that it

could not prove this fact. The district court disagreed and

applied the enhancement.

The defendant also asked the district court for a

downward departure on the basis of his serious mental health

problems. The district court noted that the Guidelines discouraged

departures on the basis of mental health unless the facts took the

case outside of the "heartland" of other cases involving defendants

with mental health problems. After carefully considering the

facts, the district court noted that "[i]t's unfortunately the case

that Mr. Anderson's condition is not outside the heartland" and

that, although his condition was serious and severe, the court

"see[s] a number of severe or serious mental health issues."

The district court calculated a final offense level of

25, yielding a guidelines sentencing range of 57-71 months. The

district court imposed a sentence of 57 months in prison, with

concurrent terms of four years of supervised release, and a $600

mandatory penalty. The judge stated that the crime "deserves the

punishment that is being imposed," and noted that the sentence, at

the bottom of the guidelines range, was "a legitimate and adequate

sentence."

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 II.

Anderson raises two main arguments on appeal. First, he

argues that the district court improperly applied the two-level

firearm sentencing enhancement under the United States Sentencing

Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(1). Second, he

challenges his sentence in the wake of Booker, where the Supreme

Court held that the guidelines must be treated as advisory rather

than mandatory. We address his arguments in turn.

A. Application of the Firearm Sentencing Enhancement

We review a district court's interpretation of the

guidelines de novo and its factual findings for clear error.

United States v. Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005). In

this case, the district court applied a two-level sentencing

enhancement for firearm possession under U.S.S.G. § 2D1.1(b)(1),

noting that the defendant acknowledged that the police had found a

loaded handgun in his apartment, and that the defendant stated that

he bought the gun for "personal protection after a series of armed

home invasions" in his area. The court also applied a two-level

reduction under the "safety valve" provision of U.S.S.G. § 5C1.2.

The defendant and the prosecution agreed that the provision was

applicable, despite its requirement that the defendant show that he

was not in possession of the firearm in connection with the

offense.

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 The defendant argues that, because the government

conceded that the safety valve applies, the district court erred in

applying the two-level sentencing enhancement for gun possession.

The district court found nothing contradictory about applying both

the enhancement and the reduction, concluding that different

standards apply for each.

We agree with the district court. The burdens for

establishing the applicability of the safety valve reduction and

the weapon enhancement are different. Section 5C1.2, the "safety

valve" provision, permits a two-level reduction in offense level if

the defendant and the offense meet certain enumerated criteria.

See United States v. McLean, 409 F.3d 492, 500 (1st Cir. 2005).

Pertinent to this case, "the safety valve is unavailable to a

defendant who 'possesses a firearm . . . in connection with the

offense.'" Id. (quoting U.S.S.G. § 5C1.2). Thus, the defendant

has the burden of establishing, by a preponderance of the evidence,

that he did not possess the firearm in connection with the offense.

See United States v. Miranda-Santiago, 96 F.3d 517, 529 n.25 (1st

Cir. 1996).

Section 2D1.1(b)(1) permits a two-level enhancement "[i]f

a dangerous weapon (including a firearm) was possessed." To garner

this enhancement, the government has the initial burden of

establishing "that a firearm possessed by the defendant was present

during the commission of the offense." United States v. McDonald,

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121 F.3d 7, 10 (1st Cir. 1997). Once the government has made that

showing, "the burden shifts to the defendant to persuade the

factfinder that a connection between the weapon and the crime is

clearly improbable." Id. (emphasis added); see also U.S.S.G.

§ 2D1.1(b)(1), cmt. n.3 ("The adjustment should be applied if the

weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.").

Thus, the burden on the defendant is different for these

two sentencing provisions. The application of the safety valve

(which requires the defendant to establish by a preponderance of

the evidence that he did not possess the firearm in connection with

the offense) does not necessarily mean that the defendant can meet

the heavier burden, once the government shows that the firearm was

present during the commission of the offense, of establishing that

it was clearly improbable that the gun was used in connection with

the offense.

Other courts have addressed similar arguments regarding

the interaction of the safety valve adjustment under § 5C1.2 and

the firearm enhancement under § 2D1.1(b)(1).1 At least two

1
We have previously held, in the co-conspirator liability
context, that "any automatic equation of the possession of a
firearm by another and unavailability of the safety valve is
mistaken." United States v. Figueroa-Encarnacion, 343 F.3d 23, 35
(1st Cir. 2003) (concluding that a co-conspirator's firearm
possession may not be attributable to the defendant for purposes of
determining the applicability of the safety valve); see also United
States v. Zavalza-Rodriguez, 379 F.3d 1182, 1187 (10th Cir. 2004)
(same). Because the basis for responsibility in these co-

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circuits have concluded that the application of a firearm

enhancement under § 2D1.1(b) does not necessarily preclude a safety

valve reduction under § 5C1.2.2 See United States v. Bolka, 355

F.3d 909, 915 (6th Cir. 2004) (noting the different burdens of

proof under the two sentencing provisions); United States v.

Nelson, 222 F.3d 545, 551 (9th Cir. 2000) (same). In other words,

these courts held that the defendant's failure to meet the higher

burden of proof set forth in the firearm enhancement provision of

the guidelines did not necessarily preclude the defendant from

meeting the lower burden of proof set forth in the safety valve

reduction provision.

In support of his position that the application of the

safety valve reduction precludes the application of the firearm

enhancement in his case, Anderson relies primarily on United States

v. Vasquez, 161 F.3d 909 (5th Cir. 1998). In Vasquez, the Fifth

Circuit stated that "§ 2D1.1(b)(1) and § 5C1.2(2) . . . should be

conspirator liability cases differs from the case presented here,
however, we do not base our holding on this precedent.
2
The district court in both of those cases held that the
application of the firearm enhancement during sentencing
automatically precluded the defendant from receiving a safety valve
reduction. Thus, the question on appeal in those cases was whether
the district court erred in automatically precluding the defendants
from the safety valve reduction. That question differs from what
we are considering here -- whether the application of the safety
valve reduction in Anderson's case should have automatically
precluded the application of the firearm enhancement. However, the
discussion of the differing burdens for the safety valve reduction
and firearm enhancement provisions in those cases is helpful for
our analysis.

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analyzed analogously." Id. at 912. However, the Fifth Circuit's

description of the government's burden under § 2D1.1(b)(1) differs

from the analysis of that burden in our precedent. The Fifth

Circuit states that "[t]he government has the burden of proof under

§ 2D1.1 of showing by a preponderance of the evidence that a

temporal and spatial relation existed between the weapon, the drug

trafficking activity, and the defendant." Id. (internal quotation

marks and citation omitted). By contrast, as explained above, we

have held that the government must show that a firearm was present

during the commission of an offense. The burden then shifts to the

defendant to show that it is clearly improbable that the gun was

used in connection with the offense. Because of these differing

approaches, the Fifth Circuit's reasoning is inapplicable in this

case. See Nelson, 222 F.3d at 550 n.3 (distinguishing Vasquez

based on its different approach to the burden under § 2D1.1(b)(1)).

We thus discern no legal error in the district court's

application of the firearm enhancement given its acceptance of the

safety valve reduction. Nor were the district court's findings

related to the firearm enhancement clearly erroneous. The

defendant conceded that there was a loaded gun in the home in which

he sold drugs. On that basis alone, the government met its burden

of establishing that the gun was present at the commission of the

offense. See McDonald, 121 F.3d at 10 ("[T]he prosecution need

only prove that the defendant possessed the weapon during the

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currency of the offense, not necessarily that he actually used it

in perpetrating the crime or that he intended to do so."). In his

objection to the PSI and during sentencing, defense counsel argued

only that Anderson bought the gun after a series of home invasions

took place in his area. This fact does not establish that a

connection between the weapon and the crime is clearly improbable.

See United States v. Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992)

("[W]hen the weapon's location makes it readily available to

protect either the participants themselves during the commission of

illegal activity or the drugs and cash involved in the drug

business, there will be sufficient evidence to connect the weapons

to the offense conduct."). Thus, we discern no error in the

district court's application of the sentencing enhancement.3

3
Anderson also appears to challenge the district court's
application of the firearm sentencing enhancement under Booker.
Specifically, he argues that his concession that he had a loaded
gun in his home does not amount to proof beyond a reasonable doubt
that the gun was used in connection with the offense. This
challenge is a non-starter. Booker does not require the
government, in an advisory guidelines system, to assume burdens
that are allocated to the defendant under the guidelines, or change
the applicable burden from preponderance of the evidence to proof
beyond a reasonable doubt. See United States v. Yeje-Cabrera, 430
F.3d 1, 17 (1st Cir. 2005) ("[T]he Booker error is not that a judge
(by a preponderance of the evidence) determined facts under the
Guidelines which increased a sentence beyond that authorized by the
jury verdict or an admission by the defendant; the error is only
that the judge did so in a mandatory Guidelines system."(internal
quotation marks omitted)); United States v. Pérez-Ruiz, 421 F.3d
11, 14-15 (1st Cir. 2005) ("Under the 5-4 constitutional ruling in
Booker, judge-made enhancements under the guidelines that result in
a sentence greater than the sentence that could be imposed based
solely on the facts found by the jury do amount to Sixth Amendment
violations if the guidelines are treated as mandatory; but under

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B. Booker error

The parties agree that Anderson preserved his Booker

claim by raising a Blakely argument in the district court.4 See

United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005)

("The argument that a Booker error occurred is preserved if the

defendant below argued Apprendi or Blakely error or that the

Guidelines were unconstitutional."). We thus review his preserved

Booker claim for harmless error. United States v. Benedetti, 433

F.3d 111, 119 (1st Cir. 2005).

The government has the burden of establishing that the

preserved Booker error was harmless. See United States v. Vázquez-

Rivera, 407 F.3d 476, 489 (1st Cir. 2005). "The standard of proof,

however, depends on whether the error is conceived of as

constitutional." Id. If the error is constitutional in nature,

"the government has the burden of proving beyond a reasonable doubt

that the error did not affect the defendant's substantial rights."

Id. If the error is not constitutional in nature, the government

the companion 5-4 remedial ruling in Booker, this problem is washed
out by treating the guidelines as advisory. A defendant sentenced
under the mandatory regime may be entitled to re-sentencing under
the advisory one . . . but Booker both created and cured the
constitutional error at the same time.").
4
Specifically, the government stated in its brief that, "[i]n
this case, although Anderson's argument below is different from the
one he makes on appeal, the record shows that the court and the
parties were keenly aware of Booker's predecessor, Blakely v.
Washington, 542 U.S. 296 (2004). As a result, the Government
agrees that Anderson's appellate claim was preserved and will
shoulder the burden of demonstrating that any error was harmless."

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has the burden of demonstrating the absence of any "grave doubt"

regarding the harmlessness of the error. See id. In the Booker

context, we have explained that constitutional error exists "where

a mandatory Guidelines sentence was imposed on the basis of judge-

found facts," in violation of the Sixth Amendment. Id. We have

not previously decided "whether Booker error arising out of the

mandatory application of the Guidelines alone . . . is

constitutional in nature." Id. at 490 n.7.

In this case, the government acknowledged that it has the

difficult burden of proving harmless error, but it did not specify

which specific standard is applicable. Because the government only

had the burden at sentencing of establishing the presence of the

gun for the firearm enhancement, and Anderson conceded that his gun

was present in his home where the drug buys occurred, it is

arguable that the Booker error in this case involves only the

mandatory application of the guidelines. However, regardless of

whether such an error is constitutional, we conclude that the

government has not met its burden of proving harmless error. The

government argues that "nothing in the record suggests that, given

a chance to reflect again, the lower court would select anything

other than the 57-month term it chose initially." To support this

assertion, the government points to the judge's statements during

sentencing that the crime "deserves the punishment that is being

imposed," and that the sentence was "a legitimate and adequate

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sentence." However, the government fails to account for the

district court's consideration and discussion of Anderson's

"serious mental health issues," presented in support of his request

for a downward departure.

In addressing this request, the district court correctly

noted that the guidelines discourage departures on the basis of

mental health problems unless the facts take the case outside of

the "heartland" of other cases involving defendants with mental

health problems. See, e.g., United States v. Maldonado-Montalvo,

356 F.3d 65, 74 (1st Cir. 2003) (explaining that, under the

guidelines, "departures based upon a defendant's mental condition

are discouraged, which means that the sentencing court must first

make a finding that the mental condition is extraordinary or

atypical" (internal citations omitted)); United States v. Studley,

907 F.2d 254, 258 (1st Cir. 1990) ("[The guidelines] specifically

state[] that defendant's mental or emotional conditions are not

ordinarily relevant. If they are to be considered, the district

court must expressly find that the defendant's particular mental or

emotional condition is 'atypical.'" (emphasis omitted)). Our

precedent has been "stringent in distinguishing between serious

mental health problems and a truly 'extraordinary' case" under the

guidelines. United States v. Derbes, 369 F.3d 579, 583 (1st Cir.

2004); see also Maldonado-Montalvo, 356 F.3d at 74 (concluding

that defendant's "severe or major depression" did not rise to the

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level of "extraordinary" and thus did not warrant downward

departure).

After carefully considering the facts presented on

Anderson's mental health history, the court found that "[i]t's

unfortunately the case that Mr. Anderson's condition is not outside

the heartland" and that, although his condition was serious and

severe, the court "see[s] a number of severe or serious mental

health issues." This is a classic mandatory guidelines analysis.

Taking into account the heavy burden of the government to

establish harmless error, we must question the government's

assertion that the district court would not sentence Anderson more

leniently in a post-Booker world. We have explained that, "under

the advisory guidelines scheme set in place by Booker, a sentencing

court will ordinarily begin by calculating the applicable

guidelines range and then determine whether other factors 'warrant

an ultimate sentence above or below the guideline range.'" United

States v. Zapete-Garcia, 447 F.3d 57, 59 (1st Cir. 2006) (quoting

United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.

2006) (en banc)); see also United States v. Saez, 444 F.3d 15, 17

(1st Cir. 2006) ("[Post-Booker,] the guideline range, taking

applicable departures into account, is the starting point for

analysis but [] the proponent of a higher or lower sentence is free

to adduce reasons and facts to support [a different sentence].").

Although rejecting Anderson's request for a downward departure

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under the mandatory guidelines system, the district court

acknowledged that it was "certainly clear that Mr. Anderson has

severe mental health issues." Moreover, the district court

sentenced him to the lowest end of the guidelines range. Given the

burden on the government, we are not persuaded -- either as to the

absence of a "grave doubt" or beyond a reasonable doubt -- that the

district court would not have imposed a lower sentence in this case

if the guidelines had been advisory rather than mandatory.

III.

For the reasons explained above, we vacate the

defendant's sentence and remand to the district court for re-

sentencing. We express no view as to whether the district court

should ultimately alter the sentence on remand.

So ordered.

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