United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2005 Decided January 3, 2006
No. 04-3158
UNITED STATES OF AMERICA ,
APPELLEE
v.
ALFONSO GODINES, A/K/A MEXICO ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00071-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief was Kenneth L. Wainstein,
U.S. Attorney, and John R. Fisher, Assistant U.S. Attorney at
the time the brief was filed. Roy W. McLeese, III, Assistant U.S.
Attorney, entered an appearance.
Before: SENTELLE and ROGERS, Circuit Judges, and
SILBERMAN , Senior Circuit Judge.
2
Opinion for the Court filed PER CURIAM .
Concurring opinion filed by Circuit Judge ROGERS.
PER CURIAM : Alfonso Godines (a.k.a. “Mexico”) pled guilty
to distributing 150-500 grams of cocaine base, in violation of 21
U.S.C. § 841(b)(1)(B)(iii). At the sentencing hearing—which
took place after the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004), but before its decision in
United States v. Booker, 125 S. Ct. 738 (2005)—Godines
objected to the mandatory application of the Sentencing
Guidelines. In response, the District Court entered into the
record two alternative rationales for the sentence imposed. First,
applying the Guidelines as mandatory, the District Court
sentenced Godines to 115 months imprisonment. Second,
applying the Guidelines “only as advisory, not as controlling,”
the District Court announced that it would sentence Godines to
the same 115-month prison term. Godines timely appealed.
Because we conclude the alternative sentencing rationale
rendered harmless any error in the mandatory Guidelines
sentence,1 we affirm.
1
Godines argues that his mandatory Guidelines sentence
violated the Sixth Amendment under both Booker and Almendarez-
Torres v. United States, 523 U.S. 224 (1998). Given our disposition
of this case, and given that Godines’s sentence (115 months) fell
below the maximum authorized under the Guidelines based on the
facts admitted in his plea agreement (135 months), we need not and do
not reach the Almendarez-Torres issue. Compare Booker, 125 S. Ct.
at 756 (“[W]e reaffirm our holding in Apprendi: Any 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.”).
3
I
We review Godines’s preserved objection to his alternative
sentence under the harmless error standard. See United States
v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005). On the facts
presented, we are confident beyond a reasonable doubt that the
District Court did not commit prejudicial error affecting
Godines’s substantial rights.
Given the uncertainty surrounding the Guidelines after
Blakely and before Booker, the District Court imposed an
“alternative sentence” in addition to the mandatory Guidelines
sentence:
But I will at this time also give an alternative sentence in
my discretion with reference to the sentencing guidelines,
but only as advisory, not as controlling. And reviewing all
the facts and circumstances that I have already discussed, I
find in my discretion, looking to the sentencing guidelines
only in an advisory way, that for the reasons that I have
already discussed and reviewed, a sentence of 115 months
is the appropriate sentence in this case. That is the
sentence, alternatively, that the Court imposes in its
discretion.
Godines argues that the District Court’s alternative rationale
impermissibly failed to “consider” the numerous sentencing
factors listed in 18 U.S.C. § 3553(a). However, even under the
harmless error standard, “we begin our review with the
presumption ‘that the district court knew and applied the law
correctly.’” United States v. Ayers, 428 F.3d 312, 315 (D.C. Cir.
2005) (quoting United States v. Pinnick, 47 F.3d 434, 439-40
(D.C. Cir. 1995)).
4
In this case, unlike in Ayers, there is nothing to rebut that
presumption. To the contrary, the District Court presciently
foresaw the contours of its obligations under the theretofore
undefined “advisory” Guidelines regime, and nothing in Booker
or this Circuit’s precedents requires anything more.
Accordingly, we hold the District Court’s alternative rationale
rendered harmless its mandatory application of the Sentencing
Guidelines. See United States v. Simpson, — F.3d —, 2005 WL
3370060, at *11 (D.C. Cir. Dec. 13, 2005); cf. Ayers, 428 F.3d
at 314-15.
II
At oral argument, Godines attempted to rebut Ayers’s
presumption by arguing that the District Court failed to
“consider . . . the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Ordinarily,
an issue raised for first time at oral argument is “waived because
it was not raised in [the] briefs.” Ark Las Vegas Rest. Corp. v.
NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003). However,
because Ayers was decided after the parties’ briefs were
submitted, and because we have not afforded the parties the
opportunity to submit supplemental briefing on the issue, we
consider Godines’s argument, although we reject it on the
merits. Cf. Hormel v. Helvering, 312 U.S. 552, 558-59 (1941).
More specifically, Godines argues that, without the
Guidelines in place, district judges will enter disparate sentences
on defendants convicted of committing offenses involving crack
cocaine. Given the impetus for sentencing uniformity contained
in section 3553(a)(6), Godines argues, the courts cannot validly
sentence to an alternative without that consideration. Since
there were no such new sentences without the Guidelines at the
time of the entry of the alternative sentencing rationale, he
5
concludes, the judge could not have considered them, and
therefore the alternative rationale must be reconsidered after
Booker. While ingenious on its face, this argument will not
withstand examination. The same requirement of uniformity
applies to all offenses, not just those involving a particular
controlled substance. The same impossibility of consideration
of sentences not yet imposed exists as to all offenses. Were we
to adopt Godines’s theory and conclusion, the sentences upheld
under the Ayers presumption would be an empty set. The
Guidelines, advisory or even if mandatory, did not require an
oracular judge who would consider all of the sentences not yet
imposed. The most a judge can do is consider those other
sentences that do exist. The comparable sentences will be much
smaller in the early days of any sentencing regime than in the
later, but this does not invalidate either set of sentences. As with
any other factor under section 3553(a), we presume the District
Court to have known and done what the law required absent a
showing to the contrary.
For the reasons set forth above, the sentencing judgment
under review is affirmed.
So ordered.
ROGERS, J., concurring: I write separately to clarify the
state of the law of this circuit in light of United States v.
Simpson, No. 04-3129, 2005 WL 3370060 (D.C. Cir. Dec. 13,
2005), and United States v. Ayers, 428 F.3d 312 (D.C. Cir.
2005). In Simpson, the court held that a sentence was free of
error under United States v. Booker, 543 U.S. 220 (2005),
because the judgment recited a single sentence with alternative
rationales. Simpson, 2005 WL 3370060, at *10. In addition to
a rationale based on the mandatory Guidelines, the district court
stated a discretionary rationale treating the Guidelines as
advisory after giving proper consideration to the sentencing
factors enumerated in 18 U.S.C. § 3553(a). See Simpson, 2005
WL 3370060, at *5-*7. Although the district court was without
lawful authority to impose a discretionary sentence when it
sentenced Simpson because the Guidelines were still mandatory,
this court sidestepped a harmless error analysis by treating the
discretionary rationale as sufficient to support the judgment
despite the Booker error. See id. at *6. By recasting the district
court’s sentence as one imposed under “alternative rationales,”
Simpson placed the burden of proving prejudicial error on the
defendant. See id. at *5.
The court in Simpson emphasized that this court reviews
judgments, not opinions of the district court about what it might
do under other circumstances. See id. (quoting People’s
Mojahedin Organization of Iran v. U.S. Department of State,
182 F.3d 17, 23 n.7 (D.C. Cir. 1999)(quoting Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842
(1984))). The formal judgment entered on the docket in
Simpson stated both the mandatory and alternative rationales for
the sentence, and identified a separate source of legal authority
for each rationale. See Simpson, 2005 WL 3370060, at *5. By
contrast, the docketed judgment in this case refers only to a
sentence imposed under the mandatory Guidelines. Although
“the order of judgment and commitment is merely evidence of
[the] sentence,” Gilliam v. United States, 269 F.2d 770, 772
2
(D.C. Cir. 1959)(citation omitted), the district court, when
pronouncing Godines’ sentence, stated that “the judgment of the
Court” was entered pursuant to the mandatory Guidelines. See
Sentencing Hr’g Tr. at 32-33. The district court also opined that
it would impose an identical sentence if the mandatory
Guidelines no longer applied, see id. at 36, but did not include
an alternative rationale for the sentence in either the docketed
judgment or the pronouncement of the sentence. As the court
held in Simpson, “[t]here is no question” that the sentence
imposed under the mandatory Guidelines was error. Simpson,
2005 WL 3370060, at *5. Unlike Simpson, however, no error-
free source of authority for sentencing Godines was set forth in
the judgment.
Consequently, because our review is limited to the
judgment, see id., the district court’s opinion about the
discretionary sentence it would impose does not stand in the
same posture as “an independent ground by which the district
court reached the same judgment,” id. at *7, and because
Godines preserved an objection, see Op. at 1, the harmless error
analysis in Ayers, 428 F.3d at 314-15, applies. The Government
thus bears the “heavy burden” of proving that the Booker error
was harmless. See Ayers, 428 F.3d at 314. In Ayers, in which
the court was presented with two identical sentences — one
imposed under the mandatory Guidelines and one announced on
the assumption that the Guidelines were no longer mandatory —
the court stated that “the announcement of an identical
alternative sentence might establish harmless error.” Id. The
court presumed that a district court announcing an alternative
non-Guidelines sentence “took into account all the factors listed
in § 3553(a) and accorded them the appropriate significance.”
Id. at 315. It remanded the case for resentencing, however,
because the district court had refused to admit mitigating
evidence, thereby rebutting the presumption that the district
court had properly considered the section 3553(a) factors. See
3
id. The “alternative sentence” approach adopted in Ayers, then,
serves as a means to avoid needless judicial proceedings but it
does not eliminate the need for harmless error analysis. Nothing
warrants deviation from our typical approach here.
Under Ayers, the district court’s imposition on Godines of
the mandatory Guidelines sentence was error, and the only
question is whether the district court’s announcement of an
identical “alternative sentence” establishes beyond a reasonable
doubt that the error was harmless. See id. at 314. Suffice it to
say, because Godines has failed to rebut the presumption that the
district court properly weighed the section 3553(a) factors, see
Op. at 2-4, the Booker error was harmless and a remand for
resentencing is unnecessary. Accordingly, I concur in the
judgment affirming the conviction.