F I L E D
United States Court of Appeals
Tenth Circuit
APR 12 2005
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
Nos. 02-4075, 02-4091, 02-4103,
02-4128, 04-4165, 04-4175
JOHNNY LANG, also known as
Melvin Pitchford, and SHARI LEWIS
LANG,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:01-CR-47-TC)
Submitted on the Briefs:
Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with her on the briefs), Office of the Federal Public Defender
for the District of Colorado, Denver, Colorado, for Defendant-Appellant Shari
Lewis Lang in 02-4075, 02-4091.
Kenneth R. Brown and Ann Marie Taliaferro of Brown, Bradshaw & Moffat, Salt
Lake City, Utah, for Defendant-Appellant Shari Lewis Lang in 04-4065 and 04-
4075.
Stephen R. McCaughey of McCaughey & Metos, Salt Lake City, Utah, for
Defendant-Appellant Johnny Lang.
Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States
Attorney, with her on the briefs), Office of the United States Attorney for the
District of Utah, Salt Lake City, Utah, for Plaintiff-Appellee United States in 02-
4075, 02-4091, 02-4103, and 02-4128.
Paul M. Warner, United States Attorney, and Michael S. Lee, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee United States in 04-
4065 and 04-4075.
Before SEYMOUR, HARTZ and McCONNELL, Circuit Judges.
SEYMOUR, Circuit Judge.
This decision resolves the appeals of both Johnny and Shari Lewis Lang
from their resentencings and the remand from the Supreme Court of our decision
in United States v. Lang, 364 F.3d 1210 (10th Cir. 2004) (Lang I), which was
vacated for further consideration in light of United States v. Booker, 125 S. Ct.
738 (2005), by 125 S. Ct. 986 (2005). The appeals and the remanded case have
been consolidated for purposes of this disposition. Except for the sentencing
issues impacted by Booker, we reinstate our opinion in Lang I. 1 Due to violations
of the Langs’ Sixth Amendment rights, we remand the cases to the district court
1
In United States v. Lang, 364 F.3d 1210 (10th Cir. 2004) (Lang I), we
rejected the joint and individual issues raised by the Langs regarding their
convictions, id. at 1221-21, 1223-24, the district court’s evidentiary rulings, id. at
1222-23, the judge’s decision not to recuse herself, id. at 1217–19, and the court’s
base offense level calculation, id. at 1219-21. We also agreed with the
government’s arguments raised on cross-appeal and reversed the district court’s
downward departures. Id. at 1213-16.
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for resentencing consistent with Booker. 2
I
As an employee of the federal district court in Utah, Shari Lang took a copy
of a sealed document home from work. The document was an affidavit that
authorized the police to use a tracking device in a narcotics investigation. The
affidavit also made reference to the ongoing state wire interception of a cellular
phone number. Mrs. Lang discussed the contents of the affidavit with her
husband, Johnny Lang, who then called the cell phone number referred to in the
affidavit. He disclosed to the recipient of the call information about the wiretap
and the tracking devices, thereby undermining the narcotics investigation. Mr.
and Mrs. Lang were indicted as a result of these activities.
The Langs proceeded to trial. Mrs. Lang testified and admitted she took a
copy of the sealed affidavit home because it piqued her curiosity. She further
testified she had not known that her husband contacted anyone in connection with
the affidavit. Mr. Lang admitted contacting the drug dealers about the contents of
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
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the affidavit, but testified that he had not discussed his plan with Mrs. Lang.
The jury rejected the Langs’ defenses and convicted each of them of (1)
obstruction of justice in violation of 18 U.S.C. § 1505; (2) acting as accessories
after the fact in the distribution of heroin in violation of 18 U.S.C. § 3; and (3)
conspiring to do both in violation of 18 U.S.C. § 371. The jury additionally found
Mrs. Lang guilty of unlawfully removing a document from a federal clerk’s office
in violation of 18 U.S.C. § 2071(a), and convicted Mr. Lang of making a false
statement to the F.B.I. in violation of 18 U.S.C. § 1001. See Lang I, 364 F.3d at
1212.
The indictment did not charge any quantity of drugs in connection with the
offenses, and the jury was not required to determine any drug quantities. The
district court made a judicial finding that the amount of drugs involved in the
distribution of narcotics underlying the Langs’ offenses was “at least 1 KG but
less than 3 KG of heroin.” U.S.S.G. § 2D1.1(c)(4). As a result, the Langs’ initial
base offense levels were set at 32. After application of a two-level enhancement
for obstruction of justice, a two-level enhancement for abuse of trust, and a six-
level decrease for accessory after the fact, Mrs. Lang’s offense level was
calculated at 30. With a criminal history category of I, her guideline range was
97 to 121 months. Similarly, after application of a two-level enhancement for
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obstruction of justice 3 and a six-level decrease for accessory after the fact, Mr.
Lang’s offense level was calculated at 28. He also had a criminal history
category of I, resulting in a guideline range of 78 to 97 months. Relying on the
fact that the Langs’ involvement as accessories was unusually brief, as well as a
finding that Mrs. Lang’s offense constituted aberrant behavior given her
education and employment history, the district court departed downward to
offense levels of 21 for both defendants. Id. at 1213. The Langs were each
sentenced to 46-month terms of incarceration. Id.
The Langs appealed and the government cross-appealed. We affirmed the
convictions in Lang I but held that the district court had erred in departing
downward. We remanded the cases for resentencing. Id. at 1215-1216, 1224. At
resentencing, the Langs argued that pursuant to Blakely v. Washington, 124 S. Ct.
2531 (2004), their Sixth Amendment rights were violated when their sentences
were based on judicial findings that increased their punishment. The district
court declined to apply Blakely to the Federal Sentencing Guidelines and reverted
to its initial offense level calculations. As a result, Mr. Lang was sentenced to a
prison term of 78 months and Mrs. Lang received a term of 97 months. The
3
The obstruction of justice finding on which the Langs’ sentences were
increased involved perjury at trial, while the obstruction of justice charge on
which they were convicted involved impeding an investigation by the Drug
Enforcement Administration.
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Langs now appeal from their resentencing.
II
After we issued our opinion in Lang I but before the Langs were
resentenced, the Supreme Court applied the rule it expressed in Apprendi v. New
Jersey, 530 U.S. 466 (2000), to hold unconstitutional the State of Washington’s
determinate sentencing regime. Blakely, 124 S. Ct. at 2536. The Langs raised
Blakely in their petition for writ of certiorari to the Supreme Court and at
resentencing before the district court, contending the Federal Sentencing
Guidelines were unconstitutional.
Subsequent to briefing in the instant appeal, the Supreme Court extended
Apprendi and Blakely to the Federal Sentencing Guidelines, holding the Sixth
Amendment requires that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. To
remedy the guidelines’ unconstitutionality, the Court severed and excised 18
U.S.C. § 3553(b)(1), which required sentencing courts to impose a sentence
within the applicable guidelines range, subject to departures in limited cases. See
id. at 764-65. As a result, the guidelines are now advisory in all cases. Id. at
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768-69. In addition, the Court expressly stated that its “remedial interpretation of
the Sentencing Act” must be applied “to all cases on direct review.” Id.
Consequently, we must evaluate the Langs’ current appeals in light of the Court’s
holding in Booker.
The Langs contend the district court violated their Sixth Amendment rights
by imposing a sentence exceeding the maximum authorized by jury findings
alone. Specifically, the Langs claim the district court unconstitutionally increased
their sentences when it found by a preponderance of the evidence that the
offenses involved “at least 1 KG but less than 3 KG” of heroin under U.S.S.G. §
2D1.1(c)(4) and that they obstructed justice pursuant to U.S.S.G. § 3C1.1. Mrs.
Lang contends her sentence was further increased unconstitutionally when the
court found she had abused a position of trust pursuant to U.S.S.G. § 3B1.3.
Although the Langs challenged the district court’s base offense level
calculations at their original sentencing hearing, they failed to raise a Sixth
Amendment objection. However, they properly preserved their Sixth Amendment
claims when they raised the issue upon resentencing. We must first determine
whether our review is governed by the harmless error standard of F ED . R. C RIM . P.
52(a) or the plain error standard of Rule 52(b).
Because of the mandate rule, which governs here, we are persuaded our
review is for harmless error. As we have made clear,
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where the appellate court has not specifically limited the scope of the
remand, the district court generally has discretion to expand the
resentencing beyond the sentencing error causing the reversal. See
United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994); United
States v. Cornelius, 968 F.2d 703, 705 (8th Cir. 1992).
United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996) (footnote omitted).
Looking at the mandate in Lang I, we see nothing specifically limiting the scope
of remand so as to prevent the district court from considering the Langs’ Sixth
Amendment claim at resentencing. Our mandate stated: “Based on the foregoing,
we REVERSE the district court’s downward departures for both Langs,
remanding both cases for resentencing pursuant to 18 U.S.C. § 3742(f)(2)(B), and
AFFIRM the decision of the district court on the remaining issues.” Lang I, 364
F.3d at 1224. This general mandate does not contain the type of specificity
necessary to limit a district court’s authority to resentence on remand. See United
States v. Hicks, 146 F.3d 1198, 1200-01 (10th Cir. 1998). 4 Moreover, although
the mandate rule “generally requires trial court conformity with the articulated
appellate remand, [it] is a discretion-guiding rule subject to exception in the
interests of justice.” Moore, 83 F.3d at 1234. We recognized in Moore that the
4
Nor do we see anything in the mandate’s reference to section
3742(f)(2)(B) that limits the district court’s discretion to take up the Langs’ Sixth
Amendment issue on resentencing. See 18 U.S.C. 3742(f)(2)(B) (noting that if an
appellate court concludes the district court erred in departing downward from the
applicable guidelines range, the appellate court “shall set aside the sentence and
remand the case for further sentencing proceedings with such instructions as the
court considers appropriate, subject to subsection (g)”).
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mandate rule is not a jurisdictional limitation, thereby allowing “some flexibility
in exceptional circumstances.” Id. at 1234-35. We also noted that “a dramatic
change in controlling legal authority” might represent such an exceptional
circumstance. Id. at 1234. The Blakely decision constituted a dramatic change in
the legal landscape, arguably foretelling the constitutional analysis in Booker.
For these reasons, we conclude the Langs’ Sixth Amendment claim was properly
before the district court at resentencing. Because the Langs preserved that issue,
we will review their claim for harmless error under Rule 52(a).
Rule 52(a) provides that “[a]ny error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.” F ED . R. C RIM . P. 52(a).
The district court erred at the resentencing, albeit unknowingly, when it found
that the Langs’ offenses involved between one and three kilograms of heroin and
that they obstructed justice, and then sentenced them on the basis of those facts
not found by a jury. Booker, 125 S. Ct. at 756; Blakely, 124 S. Ct. at 2536-37.
The court similarly erred by further enhancing Mrs. Lang’s sentence upon a
finding she abused a position of trust. Id.
At the original sentencing hearing, the district court noted that under the
guidelines the Langs “would be burdened with drug quantities from drug dealings
that have gone on for extended periods of time” when their involvement in the
offense was as minimal as an hour or two. Rec., supp. vol. I at 47. In fact,
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pursuant to the court’s finding of drug quantity, the Langs were sentenced based
on an initial offense level of 32 for their convictions related to the drug
distribution charges, resulting ultimately in a guideline range of 97-121 months
for Mrs. Lang and 78-97 months for Mr. Lang. The district court also noted that
without the additional quantity of heroin, the lowest sentencing range dealing
with heroin was a base offense level of 12. Rec., supp. vol. I at 48; U.S.S.G. §
2D1.1(c)(14). If the accessory after the fact reduction were applied to the
underlying offense of distribution of heroin pursuant to U.S.S.G. § 2X3.1, the
Langs’ base offense level for their drug related convictions would become 6, the
applicable level based on facts found by the jury. Under the rules for grouped
offenses, U.S.S.G. §§ 3D1.2, 3D1.3, the obstruction of justice count would then
become the conviction with the highest base offense level at 12. U.S.S.G. §
2J1.2(a)(2001). A base offense level of 12 would have resulted in a guideline
range of 10 to 16 months, given the Langs were both in criminal history category
I. U.S.S.G. Ch. 5 Pt. A. Simply stated, the increase from an offense level of 12,
and the Langs’ resulting sentences in excess of 16 months, were based on facts
not found by a jury in violation of the Sixth Amendment.
The burden of proving that an error does not affect substantial rights is
upon the “beneficiary of the error”– here, the government. See Chapman v.
California, 386 U.S. 18, 24 (1967). If the error is of constitutional magnitude, as
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it is here, the government is required to prove the error was harmless beyond a
reasonable doubt. See Chapman, 386 U.S. at 24. The government has not
asserted that the error in this case was harmless.
For the aforementioned reasons, we REINSTATE our opinion in Lang I
except to the extent the sentencing issues are impacted by this decision, and we
REMAND these cases to the district court with directions to vacate the Langs’
sentences and to resentence them consistent with Booker.
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