United States v. Booker, Charles

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2005 Decided February 3, 2006

No. 04-3152

UNITED STATES OF AMERICA,
APPELLEE

v.

CHARLES BOOKER,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00049-01)

Mary E. Davis, appointed by the court, argued the cause and
filed the brief for appellant.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the
time the brief was filed, and Thomas J. Tourish, Jr. and
Florence Pan, Assistant U.S. Attorneys. Roy W. McLeese, III,
Assistant U.S. Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and SENTELLE, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
 2

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Senior Circuit Judge
WILLIAMS.

SENTELLE, Circuit Judge: Charles Booker appeals his
conviction and imprisonment for “constructive possession” of a
firearm. Booker argues there was insufficient evidence to
support his conviction and that his sentence must be vacated and
remanded in light of Booker v. United States, 125 S. Ct. 738
(2005). Because we agree only with Booker’s second argument,
we affirm his conviction for “constructive possession” of a
firearm, but we vacate his sentence and remand to the District
Court for further proceedings consistent with this opinion.

I. Background

In January 2004, an undercover officer with the D.C.
Metropolitan Police Department approached Charles Booker and
expressed interest in purchasing some crack cocaine. While the
officer waited in his unmarked car, Booker ran about 50 feet up
the street and returned 10 or 20 seconds later with a Newport
cigarette pack. From the pack, Booker shook out two small
Ziploc bags containing crack cocaine and gave one to the officer
in return for $20 in prerecorded funds. The undercover officer
left, and Booker walked back up the street to re-hide the
Newport pack.

Two or three minutes later, several uniformed officers
arrived to arrest Booker. One member of the arrest team asked
Booker what he was doing outside, and Booker responded that
he was looking for his Newport cigarettes. Officer Michael
Penn, another member of the arrest team, then walked 50 feet up
the street and found Booker’s Newport pack lying on the
ground. When Penn bent down to investigate, he saw a black
 3

handgun “right beside” the Newport cigarette pack.

Booker was charged in a four-count indictment for unlawful
distribution of cocaine base, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C) (Count One); unlawful possession with
intent to distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C) (Count Two); using, carrying, or
possessing a firearm during a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three); and
unlawful possession of a firearm and ammunition by a person
convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1) (Count Four).

At trial, the government introduced evidence that the gun
was loaded, and the Newport pack contained 3.8 grams of
cocaine base, 75% pure. Although Booker’s fingerprints were
on neither the gun nor the Newport pack, the government linked
Booker to the drugs through the undercover officer’s testimony
about the drug sale; the government also introduced evidence
that Booker has previously sold crack using the same modus
operandi (i.e., dispensing crack from a Newport pack in the
same neighborhood). The government then linked the gun to
the drugs by offering photographic evidence of their physical
proximity, and expert testimony that guns and drugs are “like
a marriage. They can’t do without the other.” Unhelpfully, the
photograph is not included in the parties’ submissions in this
case. However, Booker does not contest the government’s
assertion that the gun was lying approximately five inches away
from the Newport pack, nor does Booker contest that the gun
was clean and frost-free, notwithstanding the fact that it was
recovered on a bitterly cold winter evening.

At the close of the government’s case-in-chief, Booker
moved for a judgment of acquittal. The District Court denied
 4

the motion. The defendant then called his only witness, a
private investigator, who introduced additional photographs of
the neighborhood in which Booker was arrested. According to
the defendant’s private investigator, Booker was arrested 80
feet—not 50 feet—away from the gun-and-drugs stash.

Booker did not renew his motion for judgment of acquittal
at the close of all the evidence. On May 10, 2004, the jury
found appellant guilty on all four counts. On May 16, 2004, the
defendant moved for a judgment of acquittal or, in the
alternative, for a new trial. The District Court denied the
motions.

On October 26, 2004, the District Court imposed a sentence
under the Guidelines of 240 months on Count One, 240 months
on Count Two, 60 months on Count Three, and 360 months on
Count Four. The terms on Counts One, Two, and Four were to
run concurrently, while Count Three was to run consecutively
to all other counts. Thus, the District Court imposed an
aggregate Guidelines sentence of 35 years in prison. Pending
the Supreme Court’s decision in Booker v. United States, 125 S.
Ct. 738 (2005), the sentencing judge also announced a non-
Guidelines “alternative sentence”: ten years on Count One, ten
years on Count Two, five years on Count Three, and 15 years on
Count Four. Counts One and Two were to be served
concurrently. Count Four was to be served consecutively to the
ten years on Counts One and Two. Count Three was to be served
consecutively to all other counts. Thus, the District Court
imposed an aggregate non-Guidelines “sentence” of 30 years in
prison. The District Court entered both sentences on the
judgment form.
 5

II. Sufficiency of the Evidence

A

We will affirm a conviction where “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original); see also United States v. Wahl,
290 F.3d 370, 375 (D.C. Cir. 2002). We do not distinguish
between direct and circumstantial evidence, and we give “full
play to the right of the jury to determine credibility, weigh the
evidence and draw justifiable inferences of fact.” United States
v. Clark, 184 F.3d 858, 863 (D.C. Cir. 1999) (internal quotation
marks and citations omitted). We “review the evidence of
record de novo, considering that evidence in the light most
favorable to the government.” Wahl, 290 F.3d at 375.

Ordinarily, “an appellant seeking to overturn a jury verdict
for insufficient evidence bears an exceedingly heavy burden.”
United States v. Salamanca, 990 F.2d 629, 637 (D.C. Cir. 1993).
However, where a defendant fails to renew his motion for a
judgment of acquittal (MJOA) under FED. R. CRIM. P. 29(a) at
the close of all the evidence, his burden is even heavier: He
“has waived his right to raise a sufficiency of the evidence claim
on appeal” unless “declining to consider the sufficiency of the
evidence on waiver grounds cause[s] a ‘manifest miscarriage of
justice.’” United States v. Thompson, 279 F.3d 1043, 1051
(D.C. Cir. 2002) (quoting United States v. Sherod, 960 F.2d
1075, 1077 (D.C. Cir.), cert. denied, 506 U.S. 980 (1992)). We
note that Booker—like the defendants in Thompson and
Sherod—failed to renew his MJOA at the close of all the
evidence. Unlike the defendants in Thompson and Sherod,
however, Booker did renew his MJOA after the jury verdict.
Insofar as the “miscarriage of justice” standard is intended
simply to ensure that the District Court has the opportunity to
 6

order an MJOA after receiving all the evidence, see Sherod, 960
F.2d at 1077, Booker’s post-verdict motion may be sufficient to
preserve his objections to the sufficiency of the evidence against
him. We need not determine this issue in the present case,
because for the reasons set forth below, we conclude a rational
juror could have convicted Booker for “possessing” the
handgun.

B

Booker argues the prosecution did not establish that he
“possessed” a gun for purposes of either Count Three or Count
Four because the gun was not found on his person, no one saw
him holding it, and no fingerprints were recovered from it.
However, we have long held that “possession” for purposes of
both §§ 922(g)(1) and 924(c)(1) “may be either actual or
constructive.” United States v. Alexander, 331 F.3d 116, 127
(D.C. Cir. 2003) (upholding a conviction under § 922(g)(1) on
the basis of “constructive possession”); see also Wahl, 290 F.3d
at 375-76 (upholding a conviction under § 924(c)(1) on the basis
of “constructive possession”).

We agree with the government that there was ample
evidence to justify the jury’s verdict that Booker “constructively
possessed” the handgun for purposes of both Count Three and
Count Four. “Constructive possession is established with
evidence supporting a finding that the defendant had the ability
to exercise knowing dominion and control over the items in
question.” Wahl, 290 F.3d at 376 (internal quotation marks and
citations omitted). “Although mere proximity to a gun is
insufficient to establish constructive possession, evidence of
some other factor—including connection with a gun, proof of
motive, a gesture implying control, evasive conduct, or a
statement indicating involvement in an enterprise—coupled with
proximity may suffice.” Alexander, 331 F.3d at 127 (internal
 7

quotation marks and citations omitted). In this case, several
Alexander-type “plus factors” allowed the jury to infer Booker’s
“connection with [the] gun.” The government’s drug expert
testified that drug dealers have a “motive”—namely, defense of
themselves and their drug stashes—to carry guns. The
undercover police officer watched (through his rearview mirror)
as Booker walked up the street and made “a gesture implying
control” over the gun, which was stashed immediately next to
the Newport pack. Booker then made a “statement indicating
involvement in an enterprise” when he told the arrest team that
he was looking for his Newport cigarettes. Coupled with the
fact that the stash was never more than 50-80 feet away from
Booker, these factors constitute ample evidence to find
constructive possession under Alexander and Wahl.

Moreover, Booker’s indisputable “dominion and control
over” the drugs, Wahl, 290 F.3d at 376, further supports our
conclusion that he “constructively possessed” the nearby gun.
The government’s drug expert testified about the unique relation
between drug stashes and firearms, stating that one often “can’t
do without the other.” The expert’s testimony accords with our
prior caselaw, which “has frequently recognized that guns and
drugs go together in drug trafficking.” United States v.
McLendon, 378 F.3d 1109, 1113 (D.C. Cir. 2004); see also
United States v. Brown, 334 F.3d 1161, 1171 (D.C. Cir. 2003)
(noting guns and drugs are often present together, and therefore,
the presence of one can be used to infer the presence of the
other); United States v. Conyers, 118 F.3d 755, 757 (D.C. Cir.
1997) (same); United States v. Payne, 805 F.2d 1062, 1065-66
(D.C. Cir. 1986) (same). Thus, we reaffirm that “evidence of a
defendant’s possession of [guns] can properly be used to show
his connection to [drugs],” McLendon, 378 F.3d at 1113, and
vice versa. See United States v. Evans, 888 F.2d 891, 896 (D.C.
Cir. 1989) (“The government presented evidence that [all three
defendants] were engaged in a common [drug] enterprise. From
 8

this evidence a jury could reasonably infer that all three shared
direct access to, and dominion and control over, the knapsack,”
which contained both cocaine and guns.), cert. denied sub nom.
Curren v. United States, 494 U.S. 1019 (1990); compare In re
Sealed Case, 105 F.3d 1460, 1465 (D.C. Cir. 1997) (holding
there was insufficient evidence to support constructive
possession of a gun because it was physically impossible for the
defendant to grab the gun during the drug sale).

This case differs markedly from In re Sealed Case. There,
the defendant remained inside a restaurant while his brother
conducted a drug sale in a car, which was parked outside the
restaurant. When the police arrested the defendant and his
brother, they discovered a gun under the driver’s seat of the car.
We held there was insufficient evidence to support the District
Court’s conclusion that the defendant “constructively possessed”
the gun because the spatial separation between the defendant,
the gun, and the drugs precluded him from exercising “dominion
and control” over the firearm during the transaction. See id.
Here, by sharp contrast, Booker easily could have grabbed the
gun during the drug sale (either when he went to pick up the
Newport cigarette pack, or when he went back to re-hide it).
The proximity of the gun and the drugs suggest they were
stashed by the same person, as part of “a common [drug]
enterprise,” Evans, 888 F.2d at 895, and the lack of frost and dirt
on the gun suggests it had been stashed recently. Finally,
Booker was a veteran drug-vendor in his high-crime
neighborhood, and he doubtlessly had a motive to carry a gun to
protect himself and his illicit assets. See United States v.
Jefferson, 974 F.2d 201, 208 (D.C. Cir. 1992) (concluding there
“was sufficient evidence that the guns were present ‘to protect
[the] drug traffickers and their investment’”) (quoting United
States v. Anderson, 881 F.2d 1128, 1141 (D.C. Cir. 1989)).
 9

In these circumstances, a rational juror could reasonably
conclude Booker constructively possessed the gun lying next to
his drugs, and it is certainly not a “manifest miscarriage of
justice” to affirm the jury’s verdict. Accordingly, we affirm
Booker’s conviction on Count Three and Count Four.

III. The Sentence

A

Booker and the government agree that the sentencing court
committed a constitutional error by applying the Guidelines as
mandatory. See Booker, 125 S. Ct. at 746; United States v.
Ayers, 428 F.3d 312, 314 (D.C. Cir. 2005); United States v.
Simpson, 430 F.3d 1177, 1184 (D.C. Cir. 2005). Where, as here,
a defendant entered a timely and valid objection to an error
before the District Court, we review his claim under the
harmless error standard. See United States v. Coumaris, 399
F.3d 343, 351 (D.C. Cir. 2005). “To justify reversal of a
conviction under that standard, there must be (1) error, (2) that
‘affect[s] substantial rights’—i.e., that is prejudicial.” United
States v. Perkins, 161 F.3d 66, 72 (D.C. Cir. 1998) (quoting
FED. R. CRIM. P. 52(a) and citing United States v. Olano, 507
U.S. 725, 731, 734 (1993)). The government bears the burden
of proving that prejudice did not result from the error. See
Olano, 507 U.S. at 734.

In this case, it is clear beyond a reasonable doubt that
Booker was prejudiced by the sentencing error, as evidenced by
the District Court’s willingness to sentence him to only 30 years
if the Supreme Court rendered the mandatory application of the
Guidelines unconstitutional. What is unclear, however, is the
appropriate remedy. Because “we are to review ‘judgments, not
opinions,’” we have previously held a single judgment (in the
form of a 46-month sentence) imposed under two independent
 10

rationales was not necessarily erroneous simply because one of
its supporting rationales was erroneous. Simpson, 430 F.3d at
1184 (internal quotation marks and citations omitted). We
hasten to point out, however, that Simpson did not limit our
review to the four corners of the judgment form. See id. at
1185-90 (extensively reviewing portions of the sentencing
transcript). Thus, Simpson did not hold that a sentencing judge
could render harmless the mandatory application of the
Guidelines by entering a second, independent “judgment” in the
form of an “alternative sentence.” More specifically, we
expressly did not extend our holding to a case—such as this
one—in which the District Court imposed a different
“alternative sentence.” See id. at 1184 n.7 (noting we have
never had an “occasion to consider what the appropriate
disposition would be if the district court had announced a
[Guidelines sentence and an] alternative sentence” of different
lengths).

At oral argument, we called for supplemental briefing on
whether we should simply affirm the District Court’s
“alternative sentence,” or whether we must vacate the
Guidelines sentence and remand for further proceedings. The
government supports the former option, while Booker supports
the latter. For the reasons set forth below, we agree with
Booker.

B

We note at the outset that “alternative sentencing” is not a
post-Blakely innovation. Doubting the constitutionality of the
Guidelines shortly after their promulgation in 1987, some judges
imposed pre-Guidelines sentences along with “alternative
sentences” that comported with the Guidelines. After the
Supreme Court upheld the constitutionality of the Guidelines in
Mistretta v. United States, 488 U.S. 361 (1989), the appellate
 11

courts disagreed over how to handle differing “alternative
sentences.” Compare United States v. Smith, 888 F.2d 720, 722
n.2 (10th Cir. 1989) (holding an “alternative sentence imposed
under the Sentencing Guidelines is operative” after Mistretta),
with United States v. Feekes, 879 F.2d 1562, 1568 (7th Cir.
1989) (holding it is “incorrect” to argue that an “alternative
sentence . . . sprang into effect” after Mistretta). Neither we nor
the parties could find a Mistretta-era case that analyzed the
standalone legal effect (if any) of an “alternative sentence.” The
Supreme Court never resolved the issue, which soon fell by the
wayside. See United States v. Brittman, 872 F.2d 827, 829 (8th
Cir. 1989) (noting “of course . . . the two-track [sentencing]
procedure [will not] be appropriate in the future”).

Under the Guidelines, a sentencing judge had no reason to
impose “alternative sentences.” It is therefore unsurprising that
neither we nor the parties could find guidance on “alternative
sentences” in the pre-Blakely caselaw or treatises. After the
Supreme Court cast doubt over the constitutionality of the
federal Sentencing Guidelines, see Blakely v. Washington, 542
U.S. 296, 305 n.9 (2004), at least one appellate court suggested
that sentencing judges should impose an “alternative sentence”
in addition to a Guidelines sentence, pending the Supreme
Court’s decision in Booker. See, e.g., United States v.
Hammoud, 381 F.3d 316, 353 (4th Cir. 2004) (dicta). However,
the concept of “alternative sentences” did not command
universal acclaim. See, e.g., United States v. Johnson, 333 F.
Supp. 2d 573, 579 (S.D. W. Va. 2004) (rejecting Hammoud and
holding “alternative sentencing is inconsistent with the judicial
obligation to reach a decision and undermines the role of the
court”).

The majority of circuits that have considered the question
post-Blakely has held that a lower “alternative sentence”
requires the vacatur of a higher Guidelines sentence and a
 12

remand for further proceedings. Three circuits have vacated a
Guidelines sentence and remanded for resentencing without
considering whether they could simply affirm a lower
“alternative sentence.” See United States v. Hartfield, 138 Fed.
Appx. 351, 352 (2d Cir. 2005); United States v. Lampkins, 153
Fed. Appx. 176, 178 (4th Cir. Nov. 3, 2005) (per curiam);
United States v. Jackson, 147 Fed. Appx. 109, 112 (11th Cir.
2005) (per curiam). One circuit adopted the same position in
dicta. See United States v. Cox, 2005 WL 3304022, *4 (6th Cir.
Dec. 6, 2005). A fifth circuit has vacated a Guidelines sentence
and remanded for resentencing in several cases, see United
States v. Michel-Galaviz, 415 F.3d 946, 949 (8th Cir. 2005);
United States v. Thomas, 422 F.3d 665, 669-70 (8th Cir. 2005);
United States v. Storer, 413 F.3d 918, 923-24 (8th Cir. 2005),
while one of its decisions appears inconsistent, United States v.
Merryman, 136 Fed. Appx. 953, 955 (8th Cir. 2005) (per
curiam). One circuit has suggested that it would affirm a lower
“alternative sentence” if all its “triggers” were satisfied. See
United States v. Adair, 2005 WL 2990586, *5-7 (5th Cir. Nov.
8, 2005). Finally, one circuit has held that a lower “alternative
sentence” requires the vacatur of a higher Guidelines sentence
and a remand for the “ministerial task” of amending the
judgment and committal form “to reflect the [lower] alternate
sentence[, which] is the operative sentence.” United States v.
Howe, 139 Fed. Appx. 61, 64 & n.3 (10th Cir. 2005). None of
these cases analyzed the standalone legal effect (if any) of an
“alternative sentence.” Today we address that issue. Because
we conclude an “alternative sentence” is not really a “sentence,”
and because the parties concede Booker was prejudiced by the
mandatory application of the Guidelines, we vacate the sentence
and remand for further proceedings.
 13

C

We begin with the “general rule that there can be only one
final judgment[.] . . . It follows as a necessary consequence of
the general rule that, when a final judgment has once been
entered, no second or different judgment may be rendered . . .,
until the first shall have been vacated and set aside or reversed
on appeal or error. Where a second judgment is entered by a
court after the first judgment has become final the second
judgment is void.” 49 C.J.S. JUDGMENTS § 76, at 150-51
(2005); see also Home Life Ins. Co. of Brooklyn v. Dunn, 86
U.S. 214, 225 (1873) (“To say that there can be two final
judgments . . . involves a solecism.” (emphasis in original));
Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621,
625 (7th Cir. 1993) (noting there can be “only one final
judgment per case”); 46 AM. JUR. 2D JUDGMENTS § 9, at 378
(2005) (“A judge, having rendered and signed one final
judgment, has no authority to sign another one. Thus, after a
final judgment has been entered in a ca[]se, the entry of a second
final judgment in the same ca[]se does not vacate the first, and
if there is nothing to show that the first is vacated, then the
second is a nullity.” (footnotes omitted)).

In the context of criminal sentencing, we have long
recognized “that the pronouncement of sentence constitutes the
judgment of the court.” Gilliam v. United States, 269 F.2d 770,
772 (D.C. Cir. 1959). Therefore, once the court pronounces a
criminal sentence—which constitutes a “judgment”—the court
has no lawful authority to supplement that sentence with a
second one.1 Because the sentencing judge’s oral

1
Of course, the District Court may modify or correct a
judgment in accordance with FED. R. CRIM. P. 35 (for either a “clear
error” or the defendant’s “substantial assistance”) and FED. R. CRIM.
P. 36 (for a “clerical error”). However, both rules prescribe
 14

pronouncement constitutes the judgment of the court, and
because the sentencing judge may impose one and only one
judgment, the written judgment form is a nullity to the extent it
conflicts with the previously pronounced sentence, id. at 772-73;
see also Hill v. United States ex rel. Wampler, 298 U.S. 460,
464-65 (1936); Lewis, 626 F.2d at 953; Kennedy v. Reid, 249
F.2d 492, 495 (D.C. Cir. 1957).

In this case, the District Court orally instructed the United
States Bureau of Prisons to incarcerate Booker for 35 years
under the then-applicable Guidelines. After pronouncing this
sentence, the District Court had no lawful authority to
pronounce a shorter “alternative sentence” because the District
Court had no lawful authority to enter a second judgment. To
the extent the District Court attempted to reduce or qualify its
pronouncement of a Guidelines sentence by entering a shorter
“alternative sentence” on the judgment form, the court’s original
sentencing pronouncement controls. See, e.g., Lewis, 626 F.2d
at 953; see also 18 U.S.C. § 3582(c) (“The court may not modify
a term of imprisonment once it has been imposed except” under
circumstances not relevant here.).

Accordingly, we hold that Booker’s thirty-five-year
Guidelines sentence was the only sentence the District Court
imposed, and it is the only sentence before us today.2 Had the

procedures for such changes, and both rules require the District Court
to incorporate those changes into a single, preexisting judgment. See
United States v. Lewis, 626 F.2d 940, 953 & n.21 (D.C. Cir. 1980);
Poole v. United States, 250 F.2d 396, 401 (D.C. Cir. 1957). Neither
rule empowers the District Court to enter a second, independent
judgment.
2
Because the “alternative sentence” is not embodied in a
judgment, we have no occasion to review it under the harmless error
standard.
 15

parties not stipulated to the fact that Booker was prejudiced by
his Guidelines sentence, we would look to the “alternative
sentence” only to determine prejudice vel non. Cf. United States
v. Coles, 403 F.3d 764, 767 (D.C. Cir. 2005) (per curiam)
(holding that “in assessing whether the District Court’s Booker
error was prejudicial, we must determine whether there would
have been a materially different result, more favorable to the
defendant, had the sentence been imposed in accordance with
the post-Booker sentencing regime”); Simpson, 430 F.3d at 1191
(holding an identical “alternative sentence” rendered harmless
the sentencing court’s Booker error). Because Booker’s one and
only sentence was erroneous, and because the parties agree the
error was not harmless, we vacate and remand for further
proceedings. See Ayers, 428 F.3d at 315-16.

The imposition of a discretionary, post-Booker sentence is
not a “ministerial task.”3 Howe, 139 Fed. Appx. at 64 n.3.
Given Booker’s emphasis on sentencing judges’ discretion, see
125 S. Ct. at 765-69, we cannot instruct the District Court on
remand to enter a judgment imposing a thirty-year sentence.
This disposition comports with accepted appellate practice in
cases—such as those involving federal sentencing—that hinge
on the District Court’s discretion:

It sometimes occurs that, after having considered the lower
court decision and found error, an appellate court merely
reverses or vacates and then remands—that is, it sets the
judgment aside and sends the case back to the lower court
for further proceedings, rather than entering or directing

3
Of course, if the district judge is still satisfied from the record
that the sentence previously announced as an alternative is the
appropriate disposition, it may well be in order to simply sentence on
the record rather than having another full-blown hearing.
 16

entry of judgment for the appellant or petitioner. That is the
appropriate course whenever the finding of error does not
automatically entitle the appellant or petitioner to judgment,
and the appellate court cannot conduct (or chooses not to
conduct) the further inquiry necessary to resolve the
questions remaining in the litigation. Our books are full of
such cases, from Glass v. Sloop Betsey, 3 Dall. 6 (1794),
and Clarke v. Russell, 3 Dall. 415 (1799), to Vernonia
School Dist. 47J v. Acton, 515 U.S. 646 (1995), and Tuggle
v. Netherland, 516 U.S. 10 (1995).

Stutson v. United States, 516 U.S. 163, 177-78 (1996) (Scalia, J.,
dissenting). The Stutson majority did not take issue with what
is apparently a self-evident proposition.

To summarize, our ruling in Simpson that the original
judgment could stand is not applicable here. In Simpson we did
not – indeed, could not – vacate the judgment below, as there
was no cognizable error: that is, the judge’s application of the
Guidelines as if mandatory did not affect his judgment. Here,
the error is prejudicial, and the District Court, perhaps wisely,
alerted us to the prejudice resulting from his being forced to
impose a sentence more stringent under the mandatorily applied
Guidelines than he otherwise would have done. Since the error
prejudiced the rights of the defendant, we must vacate the
judgment. We know of no authority that empowers us to require
the district judge to enter the “alternative sentence,” which he
previously recited into the record. It may well be the case,
indeed it is likely, that he will enter the same judgment. Perhaps
he will determine that he need not hold a resentencing hearing
but may simply act upon the record. All those things are for that
court on another day. Our authority is exhausted when we have
vacated the judgment entered on the basis of a prejudicial error.
 17

IV

For the reasons set forth above, the judgment of the District
Court is affirmed in part, vacated in part, and remanded for
further proceedings consistent with this opinion.
So ordered.
 WILLIAMS, Senior Circuit Judge, concurring: I concur,
but note an anomaly and a distinction. The anomaly is
between this case and ones like United States v. Simpson, 430
F.3d 1177 (D.C. Cir. 2005). In the latter cases, where the
district court chooses identical alternative sentences (both
under the Guidelines and under an estimate of the likely
outcome in the Supreme Court’s then-looming decision in
Booker v. United States, 125 S. Ct. 738 (2005)), the defendant
gets no new judicial consideration at all unless he persuades
us that the judge’s mindset in imposing the alternative wasn’t
close enough to what the Supreme Court prescribed in
Booker. Here, by contrast, where the court imposed different
sentences, the defendant gets at least the chance that the
district court might grant a sentencing hearing, even though
(so far as appears) the district court perfectly anticipated the
nature of its post-Booker discretion.

The outcome in this case is driven, as the court’s opinion
shows, by the principle that a sentencing court can impose
only one judgment. But there may be other ways to skin the
cat. Although there is a one-judgment principle, there appears
to be no categorical rule against contingent or alternative
judgments. In Williams v. Illinois, 399 U.S. 235 (1970), for
example, the Supreme Court reviewed the constitutionality of
a criminal statute that required individuals who had not paid
the fees or fines that were part of their sentence by the end of
their prison terms to remain incarcerated until they had
“worked off” outstanding balances at the rate of $5 per day.
Id. at 236. While disallowing such imprisonment where it
would increase the term of imprisonment beyond the statutory
maximum for the substantive offense, the Court emphasized
that its holding did “not deal with a judgment of confinement
for nonpayment of a fine in the familiar pattern of an
alternative sentence of ‘$30 or 30 days.’” Id. at 244.
 2

The present case doesn’t involve a contingent or
alternative sentence, as the court didn’t include the non-
Guidelines sentence in the judgment. And sentence
contingencies based on anticipated outcomes in Supreme
Court decisions may, of course, pose different problems from
contingencies based on the defendant’s conduct. But
whatever those issues may be, our decision here doesn’t speak
to the availability of such judgments to solve transition
problems such as those posed by Booker/Blakely v.
Washington, 542 U.S. 296 (2004).