United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2006 Decided January 12, 2007
No. 04-3076
UNITED STATES OF AMERICA,
APPELLEE
v.
WALTER HENRY, III, A/K/A MONEY,
A/K/A HENRY WALKER,
APPELLANT
No. 04-3116
UNITED STATES OF AMERICA,
APPELLEE
v.
CHARLES HARRISON,
A/K/A BOOMIE,
APPELLANT
Appeals from the United States District Court
for the District of Columbia
(No. 98cr00235-04)
(No. 98cr00235-05)
2
William M. Kent argued the cause for appellants. Deborah
A. Persico, appointed by the court for appellant Charles
Harrison, was on the joint brief for the appellants.
Deborah Watson, Attorney, United States Department of
Justice, argued the cause for the appellee. Kenneth L. Wainstein,
United States Attorney at the time the brief was filed, was on
brief. Roy W. McLeese, III, Assistant United States Attorney,
entered an appearance.
Before: HENDERSON, GARLAND and KAVANAUGH, Circuit
Judges.
Opinion for the court filed PER CURIAM.
Concurring opinion filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge KAVANAUGH.
PER CURIAM: Having been resentenced on remand from this
court, Walter Henry and Charles Harrison again appeal their
convictions and sentences stemming from their participation in
a conspiracy to import and distribute heroin in the Washington,
D.C. and Baltimore, Maryland metropolitan areas. They appeal
their convictions on the ground that the trial court committed
three evidentiary errors: (1) it admitted expert testimony based
in part on testimonial hearsay in violation of Crawford v.
Washington, 541 U.S. 36 (2004) (Claim One), (2) it admitted
expert testimony based on unreliable methodology (Claim Two)
and (3) it admitted the guilty plea of a non-testifying co-
conspirator (Claim Three). Henry and Harrison also argue that
they received ineffective assistance of counsel when their
appellate counsel failed to raise Claims Two and Three on direct
3
appeal.1 Finally, Henry and Harrison challenge their sentences
on the ground that the district court applied the United States
Sentencing Guidelines (Guidelines) in a mandatory fashion in
violation of United States v. Booker, 543 U.S. 220 (2005). For
the reasons set forth below, we conclude that Henry and
Harrison waived their evidentiary claims by failing to raise them
at trial or on direct appeal. Furthermore, Henry’s and Harrison’s
ineffective assistance of counsel claim must be raised on
collateral review, see 28 U.S.C. § 2255, if at all. Consistent with
our holding in United States v. Ayers, 428 F.3d 312 (D.C. Cir.
2005), however, we will vacate the sentences and remand for
resentencing because we cannot say that the district court’s
Booker error was harmless beyond a reasonable doubt.
I.
We set forth in detail the facts surrounding the heroin
conspiracy in United States v. Stover, 329 F.3d 859 (D.C. Cir.
2003), cert. denied, 541 U.S. 1018 (2004). Accordingly, we
mention only those matters required for an understanding of the
decision. On May 4, 1999, the Government charged Henry,
Harrison and other individuals with conspiracy to possess with
intent to distribute one kilogram or more of heroin. Nuri Lama,
the conspiracy’s ringleader, pleaded guilty and thereafter
testified as a witness against his co-conspirators at their October
20, 1999 trial. Although the jury convicted Henry of possession
1
It remains unclear, even after oral argument, whether Henry and
Harrison ask us to review Claims Two and Three on the merits or to
decide whether failure to raise them on direct appeal constituted
ineffective assistance of counsel. See Appellants’ Br. at 35-36, 40. As
a result, we will address both.
4
with intent to distribute, it failed to reach a verdict on the drug
conspiracy count against Henry and Harrison.2
On September 11, 2000, Henry and Harrison were retried on
the drug conspiracy count. Because Lama had died between the
two trials, the prosecution introduced evidence at the second
trial that Lama had pleaded guilty to the conspiracy charge. The
prosecution also introduced the expert testimony of
Metropolitan Police Department Detective Tyrone Thomas who
testified about the meanings of various code words used by the
co-conspirators during telephone conversations intercepted by
the FBI.
After a five-week trial, the jury convicted both Henry and
Harrison of conspiracy to possess with intent to distribute one
kilogram or more of heroin. In determining Henry’s and
Harrison’s sentences under the then-mandatory Guidelines, the
district court utilized a formula derived from Detective
Thomas’s expert testimony to calculate the amount of heroin for
which Henry and Harrison were responsible. Based on its
calculations, the court found each responsible for 39.4 kilograms
of heroin, resulting in a base offense level of 38. The court then
added four levels for the leadership roles of both Henry and
Harrison in the conspiracy and two levels for possession of a
firearm for a total offense level of 44. Combined with Henry’s
and Harrison’s Criminal History Category of I, the Guidelines
mandated a sentence of life imprisonment for both and the court
sentenced them accordingly.
The co-conspirators, including Henry and Harrison, appealed
their convictions and sentences. In Stover, we affirmed Henry’s
2
The jury also failed to reach a verdict on the money laundering
conspiracy count against Harrison. Stover, 329 F.3d at 864. The
district court eventually dismissed that count. Id.
5
and Harrison’s convictions but concluded that the district court
had erroneously calculated the amount of heroin for which each
should be held responsible. Accordingly, we vacated their
sentences and remanded to the district court to recalculate the
drug quantity. Stover, 329 F.3d at 876.
At their resentencing hearings,3 both Henry and Harrison
argued that the Sixth Amendment prohibits judicial calculation
of drug amounts at sentencing.4 The district court rejected their
argument and, based on its revised calculation of the drug
amounts, held both Henry and Harrison responsible for 27.3
kilograms of heroin. Again treating the Guidelines as
mandatory, the court set both base offense levels at 36. It then
added four levels for their managerial roles in the offense and
two levels for possession of a firearm for a total offense level of
42. Combined with their Criminal History Category of I,
Henry’s and Harrison’s Guidelines range was 360 months to life
imprisonment and the district court again sentenced them to life
imprisonment. Henry and Harrison filed timely notices of
appeal.
II.
We address separately Henry’s and Harrison’s evidentiary
challenges, their ineffective assistance of counsel claim and their
Booker challenge.
3
Henry’s resentencing hearing occurred on June 10, 2004, and
Harrison’s on July 21, 2004.
4
Henry cited Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Harrison cited Blakely v. Washington, 542 U.S. 296 (2004), which the
Supreme Court decided after Henry’s hearing.
6
A. Evidentiary Challenges
Although they failed to raise their evidentiary challenges at
trial or on direct appeal, Henry and Harrison argue that we
should nevertheless review them for plain error on this appeal
after the resentencing remand. See Fed. R. Crim. P. 52(b). We
disagree.
It is well-settled that “where an argument could have been
raised on an initial appeal, it is inappropriate to consider that
argument on a second appeal following remand.” Nw. Ind. Tel.
Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) (citing Laffey v.
Nw. Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C. Cir. 1984));
see also United States v. Ben Zvi, 242 F.3d 89, 95-96 (2d Cir.
2001) (applying waiver to second appeal following resentencing
remand); cf. United States v. Adesida, 129 F.3d 846, 849-50 (6th
Cir. 1997) (applying waiver at resentencing remand stage). The
“widely-accepted” bar promotes procedural efficiency and
prevents the “‘bizarre result’” that “‘a party who has chosen not
to argue a point on a first appeal should stand better as regards
the law of the case than one who had argued and lost.’” Nw.
Ind. Tel., 872 F.2d at 470 (quoting Laffey, 740 F.2d at 1089-90).
Although the “waiver principle is [not] an absolute preclusion to
appellate review,” Crocker v. Piedmont Aviation, Inc., 49 F.3d
735, 739 (D.C. Cir. 1995), we have stated that “discretion to
waive a waiver is normally exercised only in ‘exceptional
circumstances, where injustice might otherwise result,’” id. at
740 (quoting Eli Lilly & Co. v. Home Ins. Co., 794 F.2d 710,
717 (D.C. Cir. 1986)).
Henry and Harrison have not demonstrated “exceptional
circumstances” that excuse their failure to raise the evidentiary
challenges either at trial or on direct appeal. Regarding Claim
One—the allegedly erroneous admission of Thomas’s expert
testimony based in part on hearsay—Henry and Harrison argue
7
that the Crawford decision, which the Supreme Court issued
after their direct appeal,5 created a new legal rule that rendered
the testimony inadmissible. While we have suggested that an
intervening change in the law can constitute an “exceptional
circumstance[]” that justifies waiving waiver, see Crocker, 49
F.3d at 740, the Crawford decision did not effect such a change
with respect to the admissibility of Thomas’s expert testimony.
In Crawford, the Supreme Court altered the framework set forth
earlier in Ohio v. Roberts, 448 U.S. 56 (1980), and held that the
Confrontation Clause of the Sixth Amendment bars
“testimonial” hearsay statements unless the declarant is
unavailable to testify and the defendant had a prior opportunity
to cross-examine him. Crawford, 541 U.S. at 68-69. Crawford,
however, did not involve expert witness testimony and thus did
not alter an expert witness’s ability to rely on (without repeating
to the jury) otherwise inadmissible evidence in formulating his
opinion under Federal Rule of Evidence 703.6 In other words,
while the Supreme Court in Crawford altered Confrontation
Clause precedent, it said nothing about the Clause’s relation to
Federal Rule of Evidence 703. Because Crawford does not
represent an intervening change in the law regarding the
admissibility of Thomas’s expert testimony, no exceptional
circumstance exists and Henry’s and Harrison’s Claim One is
thus waived.
5
We issued Stover on May 23, 2003. The Supreme Court decided
Crawford on March 8, 2004.
6
Federal Rule of Evidence 703 provides in part: “If of a type
reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be
admitted.” (Emphasis added.)
8
With respect to Claims Two and Three, Henry and Harrison
appear to argue that we should address the merits in this appeal
because their original appellate counsel acted ineffectively in
failing to raise them on direct appeal. See Appellants’ Br. at 35-
36, 40. In particular, Henry and Harrison argue that the trial
court erroneously permitted Detective Thomas to testify about
the meanings of terms used by the co-conspirators in intercepted
telephone conversations and erroneously admitted evidence that
Lama pleaded guilty although Lama himself was unavailable to
testify. In order to reach the merits of Claims Two and Three
because counsel allegedly acted ineffectively, however, we
would first need to determine whether counsel acted
ineffectively. And because an ineffective assistance of appellate
counsel claim must ordinarily be made on collateral review, see
Part II.B infra, we decline to consider Henry’s and Harrison’s
original appellate counsel’s performance an exceptional
circumstance that justifies waiving waiver. Accordingly, we do
not reach the merits of Claims Two and Three.
B. Ineffective Assistance of Counsel Claim
Henry and Harrison argue that their original appellate
counsel acted ineffectively in failing to raise Claims Two and
Three on direct appeal. When a defendant raises an ineffective
assistance of trial counsel claim for the first time on direct
appeal, our “‘general practice is to remand the claim for an
evidentiary hearing.’” United States v. Moore, 394 F.3d 925,
931 (D.C. Cir. 2005) (quoting United States v. Rashad, 331 F.3d
908, 909 (D.C. Cir. 2003)). Other circuits require the defendant
to pursue an ineffective assistance of trial counsel claim in
collateral proceedings under 28 U.S.C. § 2255. See, e.g., United
States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995);
United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir. 1994).
Nevertheless, an ineffective assistance of trial counsel claim can
be resolved on direct appeal if the trial record conclusively
9
shows that counsel did or did not perform effectively. See, e.g.,
Moore, 394 F.3d at 931; Quintero-Barraza, 78 F.3d at 1347;
Matzkin, 14 F.3d at 1017.
The question here is whether we should similarly treat a
claim of ineffective assistance of appellate counsel raised in an
appeal following a resentencing remand. On the one hand, such
a claim is virtually unreviewable on direct appeal as appellate
counsel will hardly assert his own ineffectiveness. Cf. United
States v. Weaver, 281 F.3d 228, 234 (D.C. Cir. 2002)
(explaining that defendant can, with new counsel, raise
ineffective assistance of trial counsel claim for first time on
direct appeal because “trial counsel cannot be expected to argue
his own ineffectiveness in a motion for a new trial”). Therefore,
if the trial record sufficed, we could decide a claim of ineffective
assistance of appellate counsel on appeal following a
resentencing remand. Cf. Nw. Ind. Tel., 872 F.2d at 470
(explaining that waiver applies “where an argument could have
been raised on an initial appeal” (emphasis added)); see also
Ben Zvi, 242 F.3d at 96 (deciding ineffective assistance of
appellate counsel claim on appeal after resentencing remand
because “the underlying challenge” was “sufficiently presented”
and “judicial efficiency would be served”). Unlike a claim of
ineffective trial counsel that can be made on direct appeal,
however, a claim of ineffective appellate counsel can be made
only if a “second” appeal occurs—for example, as a result of a
resentencing remand. In effect, a fortuity of the judicial
process—whether we decide to remand for resentencing—would
thus determine whether the defendant has an alternative to
collateral review in pursuing an ineffective assistance of
appellate counsel claim. Cf. Griffith v. Kentucky, 479 U.S. 314,
327-28 (1987) (applying new Supreme Court rule retroactively
in criminal case because it is “solely the fortuities of the judicial
process” that determine case Court chooses to hear first on
10
plenary review). We believe a uniform procedure should apply
to all defendants with an ineffective assistance of appellate
counsel claim and therefore we will not consider such a claim on
appeal following remand for resentencing. Instead, a defendant
with such a claim must pursue it on collateral review pursuant
to 28 U.S.C. § 2255.
C. Booker Claim
Finally, it is undisputed that the district court sentenced
Henry and Harrison by applying the Guidelines in a mandatory
fashion to increase his sentence beyond that which could have
been imposed based solely on the facts found by the jury which
is constitutional error under United States v. Booker, 543 U.S.
220 (2005). See United States v. Simpson, 430 F.3d 1177, 1182-
83 (D.C. Cir. 2005). Nevertheless, the Government argues that
the error was harmless beyond a reasonable doubt and thus a
resentencing remand is unnecessary. We disagree.
At their respective resentencing hearings, both Henry and
Harrison raised a Sixth Amendment objection to their sentences.
Accordingly, we review the sentences for harmless error under
Federal Rule of Criminal Procedure 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights
must be disregarded.”). That is, the Government must establish
“beyond a reasonable doubt that the error complained of did not
contribute to the sentence obtained.” United States v. Coumaris,
399 F.3d 343, 351 (D.C. Cir. 2005) (quotation omitted).
The Government maintains that the district court’s
sentencing error was harmless beyond a reasonable doubt
because it imposed the maximum sentence in the Guidelines
range notwithstanding its discretion to impose a lower sentence.
That is, the district court decided to sentence Henry and
Harrison to life imprisonment under a then-mandatory
Guidelines range of 360 months to life imprisonment. Relying
11
on Tenth Circuit precedent, Appellee’s Br. at 47-48, the
Government contends that if a judge imposed the maximum
sentence within the then-mandatory Guidelines range, there is
no reason to believe he would change the sentence on remand.
See United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.
2005) (sentence imposed at top of Guidelines range pre-Booker
constitutes harmless error because “[h]aving exercised his
limited discretion under the pre-Booker system to give [the
defendant] the highest permissible sentence, there is no reason
to think the judge would exercise his now-greater discretion to
reduce the sentence”); United States v. Waldroop, 431 F.3d 736,
743 (10th Cir. 2005) (citing Riccardi for same proposition).
We do not believe that the pre-Booker imposition of a
sentence at the top of a Guidelines range by itself constitutes
harmless error. In United States v. Coles, we held that a Booker
error constitutes plain error if “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.” 403 F.3d 764, 767 (D.C. Cir. 2005). In so
holding, we recognized that “[t]here undoubtedly will be some
cases in which a reviewing court will be confident that a
defendant has suffered no prejudice,” id. at 769, and therefore
remand would be unnecessary. For example, if a district judge
imposed a sentence at the statutory maximum “‘and [said] that
if he could he would have imposed an even longer sentence,
there would be no basis for thinking that if he had known that
the sentencing guidelines [were] merely advisory he would have
given the defendant a lighter sentence.’” Id. (quoting United
States v. Paladino, 401 F.3d 471, 483 (7th Cir. 2005)).
We also suggested in Coles, however, that the imposition of
a sentence at the top of a Guidelines range without “the judge’s
characterization of the sentence,” United States v. Tchibassa,
12
452 F.3d 918, 930 (D.C. Cir. 2006), is “hardly conclusive,”
Coles, 403 F.3d at 769. We noted:
“A conscientious judge—one who took the guidelines
seriously whatever his private views—would pick a
sentence relative to the guideline range. If he thought
the defendant a more serious offender than an offender
at the bottom of the range, he would give him a higher
sentence even if he thought the entire range too high.”
Id. at 770 (quoting Paladino, 401 F.3d at 482). In other words,
a trial judge treating the Guidelines as mandatory might have
imposed the maximum sentence in a particular range not
necessarily because he believed the defendant deserved that
sentence but because he considered the defendant to be the most
serious type of offender in the range. And if this analysis
applies in the plain error context, where the burden of proving
prejudice is on the defendant, it applies a fortiori in the context
of constitutional harmless error, where the burden is on the
Government to establish no prejudice beyond a reasonable
doubt. Thus, we agree with our sister circuits that have held that
a sentence at the top of a Guidelines range is not, in itself,
enough to establish that a Booker error was harmless beyond a
reasonable doubt. See United States v. Wood, 440 F.3d 255, 259
(5th Cir. 2006); United States v. Cain, 433 F.3d 1345, 1348
(11th Cir. 2005).
Here, unlike in Coles, the defendants raised Sixth
Amendment objections in the district court. Because we cannot
conclude that the district court would have sentenced Henry and
Harrison to life imprisonment irrespective of the mandatory
nature of the Guidelines, the Government has not established
that the error was harmless. We therefore vacate the sentences
and remand for resentencing. See United States v. Baugham,
449 F.3d 167, 182-83 (D.C. Cir. 2006); United States v. Brown,
13
449 F.3d 154, 159-60 (D.C. Cir. 2006); Ayers, 428 F.3d at 315-
16.
For the foregoing reasons, we affirm Henry’s and Harrison’s
convictions but we vacate the sentences and remand the case to
the district court for resentencing under Booker and 18 U.S.C.
§ 3553(a).
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I fully agree that we should affirm Henry’s and Harrison’s
convictions. I am less certain, however, that we should remand
for a second resentencing.
A Booker error is prejudicial if “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.”* United States v. Coles, 403 F.3d 764, 767
(D.C. Cir. 2005). As Coles acknowledges, “[t]here undoubtedly
will be some cases in which a reviewing court will be confident
that a defendant has suffered no prejudice.” Id. at 769. In such
a case, “‘there would be no basis for thinking that if [the judge]
had known that the sentencing guidelines [were] merely
advisory he would have given the defendant a lighter sentence,’”
id. (quoting United States v. Paladino, 401 F.3d 471, 483 (7th
Cir. 2005)), and thus no reason exists to remand for
resentencing.
While I agree that a sentence imposed at the top of a
Guidelines range does not without more constitute harmless
error, the record in this case reveals more. Although the trial
judge did not explicitly state that he would have imposed the
same sentences were the Guidelines not mandatory, he has twice
sentenced Henry and Harrison to the maximum sentence of life
imprisonment. He originally imposed the mandatory sentence
of life imprisonment. Upon remand for resentencing, the judge
again sentenced Henry and Harrison to life imprisonment after
calculating a lower Guidelines range of 360 months to life
imprisonment. Therefore, the judge not only rejected a lower
*
Although we applied the plain error standard in Coles, 403 F.3d
at 767, the prejudice inquiry is the same under both the plain and
harmless error standards. See United States v. Olano, 507 U.S. 725,
734 (1993) (plain error inquiry “normally requires the same kind of
inquiry [as harmless error], with one important difference: It is the
defendant rather than the Government who bears the burden of
persuasion with respect to prejudice”).
2
sentence within a particular Guidelines range, he rejected a
lower sentence in a lower range. Indeed, a “conscientious
judge” who considered mandatory life imprisonment to be
excessive would necessarily impose a lighter sentence if a lower
mandatory range applied. See Coles, 403 F.3d at 770. Because
here the district judge chose not to impose a shorter sentence on
the first remand—even with a lower Guidelines range—I believe
there is no reason to think that he would reduce the sentence on
a second remand with no mandatory Guidelines range.
Furthermore, at least with respect to Harrison, the district
judge explained why the life sentence was appropriate. In
United States v. Tchibassa, under plain error review, we found
no prejudice where the district judge imposed the maximum
sentence within the Guidelines range and stated that the sentence
was “appropriate to serve as a warning to those who will kidnap
Americans abroad and entirely appropriate for the type of
actions that occurred here in depriving [the former hostage] not
only of his freedom for two months, but basically of his life.”
452 F.3d 918, 930 (D.C. Cir. 2006) (quotation omitted)
(emphasis original). As we explained in Tchibassa:
The judge’s strong and unambiguous approval of the
sentence imposed, based . . . on its deterrent effect and
its proportionality to the crime committed, makes us
confident that were the judge given the opportunity to
resentence Tchibassa . . . he would not impose a
sentence materially more favorable than the one he made
plain he considered “appropriate.”
Id. Similarly, the court stated at Harrison’s resentencing
hearing:
The Court finds that a sentence of life is appropriate in
this case in light of the defendant’s boasting of his
lifestyle and his lifestyle, and the need for deterrence
provides sufficient reason for the maximum penalty.
3
Dealing in this amount of drugs should result in a
sentence of life imprisonment, in this Court’s view, and
that will provide . . . some deterrence in the community
if others were to understand that even though they’ve
never been arrested before, if they deal in this amount of
drugs they’re going away for the rest of their lives.
7/21/04 Tr. 28-29 (emphasis added). Because the judge offered
a “strong and unambiguous approval of the sentence imposed”
upon Harrison, I think there is little, if any, reason to believe that
he would impose a sentence more favorable to Harrison were he
given the opportunity to resentence him. See Tchibassa, 452
F.3d at 930.
KAVANAUGH, Circuit Judge, concurring: I join the Court’s
opinion and add this concurrence to note a few broader points
about the path of post-Booker jurisprudence in the federal
courts.
To review: In Booker, a five-Justice majority of the
Supreme Court held that the United States Sentencing
Guidelines were unconstitutional under the Fifth and Sixth
Amendments to the extent that facts used to increase a criminal
sentence (beyond what the defendant otherwise could have
received) were not proved to a jury beyond a reasonable doubt.
United States v. Booker, 543 U.S. 220, 226-27 (2005) (Stevens,
J., joined by Scalia, Souter, Thomas, and Ginsburg, JJ.). The
logical upshot of this part of Booker (what is known as the
Booker constitutional opinion) is that the Constitution is
satisfied by a sentence in which sentencing facts are proved to
a jury beyond a reasonable doubt.
In some tension with the Booker constitutional opinion,
however, a different five-Justice majority of the Booker Court
also held (in what is known as the Booker remedial opinion) that
the constitutional problem with the Guidelines is more readily
solved not by requiring sentencing facts to be proved to a jury
beyond a reasonable doubt, but instead by making the
Guidelines one factor in the district court’s sentencing decision,
along with other factors specified in 18 U.S.C. § 3553(a). Id. at
245-46, 260-61 (Breyer, J., joined by Rehnquist, C.J., and
O’Connor, Kennedy, and Ginsburg, JJ.); cf. id. at 302 (Stevens,
J., dissenting in part, joined by Scalia and Souter, JJ.) (“[B]y
repealing the right to a determinate sentence that Congress
established in the SRA, the Court has effectively eliminated the
very constitutional right Apprendi sought to vindicate.”). The
Booker remedial opinion emphasized, however, that the
sentencing court still “must consult” the Guidelines and “take
them into account when sentencing.” Id. at 264. The Booker
remedial opinion also directed appellate courts to review district
court sentences for “reasonableness” – a term not defined, but
2
which the Court stated would help “to avoid excessive
sentencing disparities while maintaining flexibility sufficient to
individualize sentences where necessary.” Id. at 264.
In light of the Booker remedial opinion and § 3553(a)’s
requirement that district courts “shall consider” the Guidelines,
as well as § 3553(a)’s express goal of avoiding unwarranted
sentencing disparities, this Court and other federal courts after
Booker have held that the Guidelines remain central to
sentencing. In part because the “reasonableness” of a sentence
is not self-defining and because the Booker remedial opinion
said that appellate review would help maintain uniformity,
appellate courts have relied on the Guidelines as the
predominant substantive standard against which to measure a
sentence’s reasonableness. Indeed, many courts of appeals,
including this one, have accorded a “presumption of
reasonableness” to within-Guidelines sentences. See United
States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006); see
generally United States v. Buchanan, 449 F.3d 731, 735-41 (6th
Cir. 2006) (Sutton, J., concurring). And appeals courts have
found many below-Guidelines sentences to be “unreasonable.”
The post-Booker appellate jurisprudence in turn has exerted
further hydraulic pressure on district courts to rely heavily on
the Guidelines in sentencing criminal defendants. It thus may be
something of a misnomer to call the Guidelines “advisory” with
respect to current sentencing practices given that appeals courts
often assess the propriety of a district court sentence in part by
reference to the Guidelines.
As we review what has happened since Booker, there is no
denying that the post-Booker system in substance closely
resembles the pre-Booker Guidelines system in constitutionally
relevant respects. See Michael W. McConnell, The Booker
Mess, 83 DENV. U. L. REV. 665, 678 (2006) (“All the things that
troubled Sixth Amendment purists about the pre-Booker
3
Guidelines system are unchanged.”); see also Douglas A.
Berman & Stephanos Bibas, Making Sentencing Sensible, 4
OHIO STATE J. CRIM. L. 37, 53 (2006); Douglas A. Berman,
Tweaking Booker: Advisory Guidelines in the Federal System,
43 HOUS. L. REV. 341, 347-55 (2006). Four of the five Justices
who joined the Booker remedial opinion, including its author
Justice Breyer, did not find any constitutional problem with the
Guidelines to begin with. So it is understandable that the current
system as applied is not a major departure from the pre-Booker
Guidelines system. Cf. Booker, 543 U.S. at 312-13 (Scalia, J.,
dissenting in part) (stating that Booker remedial opinion may
convey message that “little has changed” from mandatory
Guidelines system and posing question: “Will appellate review
for ‘unreasonableness’ preserve de facto mandatory Guidelines
by discouraging district courts from sentencing outside
Guidelines ranges?”).
To be sure, district and appeals courts now take some
additional and important procedural steps (as exemplified again
by today’s per curiam opinion). But the bottom line, at least as
a descriptive matter, is that the Guidelines determine the final
sentence in most cases. And notwithstanding the Booker
constitutional opinion, many key facts used to calculate the
sentence are still being determined by a judge under a
preponderance of the evidence standard, not by a jury beyond a
reasonable doubt. The oddity of all this is perhaps best
highlighted by the fact that courts are still using acquitted
conduct to increase sentences beyond what the defendant
otherwise could have received – notwithstanding that five
Justices in the Booker constitutional opinion stated that the
Constitution requires that facts used to increase a sentence
beyond what the defendant otherwise could have received be
proved to a jury beyond a reasonable doubt.
4
In short, we appear to be back almost where we were
pre-Booker. And if that is so – and if the lower courts’ effort to
harmonize the competing goals of the Booker opinions has
become the jurisprudential equivalent of a dog chasing its tail –
it makes sense to examine how current sentencing practices
square not just with Booker but with underlying constitutional
principles.
The disagreement in Booker (and in earlier cases such as
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 542 U.S. 296 (2004)) represents the collision of two
starkly different conceptions of how the Fifth and Sixth
Amendments apply to criminal sentencing.
The first conception of the Fifth and Sixth Amendments,
which might be called the “deference-to-legislatures” model,
generally defers to legislatures in defining crimes and enacting
sentencing schemes. Under this interpretation, the Fifth and
Sixth Amendments generally require that a jury find the elements
of the crime (as defined by the legislature) beyond a reasonable
doubt. As to sentencing, this approach gives legislatures wide
discretion in crafting a mandatory or structured sentencing
system; or adopting an unstructured system in which each
sentencing judge possesses broad authority to assess a sentence
based on the individual background, facts, and circumstances of
the offense and offender; or choosing some approach in between.
See generally Williams v. New York, 337 U.S. 241 (1949);
McMillan v. Pennsylvania, 477 U.S. 79 (1986) (Rehnquist, J.)
(opinion of the Court); Booker, 543 U.S. at 326-34 (Breyer, J.,
dissenting in part); Blakely, 542 U.S. at 314-26 (O’Connor, J.,
dissenting); id. at 326-28 (Kennedy, J., dissenting). Proponents
of this approach argue that it has prevailed throughout most of
our history, as courts have generally respected and adhered to
legislative choices with respect to sentencing schemes. See
Booker, 543 U.S. at 327-28 (Breyer, J., dissenting in part).
5
The second conception of the Fifth and Sixth Amendments,
which might be termed the “real-elements-of-the-offense”
model, rests on the constitutionally central role of the jury in the
criminal process. This approach begins with the idea that no
logical distinction exists between the elements of a crime and
so-called sentencing facts that are used to increase a sentence.
Because the Constitution requires that the Government prove the
elements of a crime to a jury beyond a reasonable doubt, the
Constitution also requires that the Government prove
substantively similar sentencing facts (such as carrying a weapon
during commission of a drug crime) to a jury beyond a
reasonable doubt. To do otherwise, this view contends, would be
to elevate form over substance and allow legislatures to evade
the constitutional requirement that the prosecutor prove the
elements of the crime to a jury beyond a reasonable doubt simply
by re-labeling elements of the crime as sentencing factors.
Under this jurisprudential approach, therefore, courts do not
defer to a legislative choice to label a fact as a sentencing factor
rather than an element of the crime. See Booker, 543 U.S. at
226-44 (Stevens, J., joined by Scalia, Souter, Thomas, and
Ginsburg, JJ.); Harris v. United States, 536 U.S. 545, 572-83
(2002) (Thomas, J., dissenting); Apprendi, 530 U.S. at 498-99
(Scalia, J., concurring).
There is an important qualification to this second approach,
however, which may explain some of the conceptual and
practical difficulty in this area. Despite requiring the jury to find
beyond a reasonable doubt the facts used to increase a sentence,
the adherents to the real-elements-of-the-offense approach allow
purely discretionary sentencing schemes whereby judges
“exercise broad discretion in imposing a sentence within a
statutory range.” Booker, 543 U.S. at 233; see also Apprendi,
530 U.S. at 481. This concession creates an apparent anomaly:
After all, discretionary sentencing systems appear to pose an
6
even greater concern that key facts used to increase a sentence
are found by judges – on the record or often silently – by a
preponderance of the evidence rather than by juries beyond a
reasonable doubt. See Apprendi, 530 U.S. at 548-49 (O’Connor,
J., dissenting) (“[O]ur approval of discretionary-sentencing
schemes, in which a defendant is not entitled to have a jury make
factual findings relevant to sentencing despite the effect those
findings have on the severity of the defendant’s sentence,
demonstrates that the defendant should have no right to demand
that a jury make the equivalent factual determinations under a
determinate-sentencing scheme.”); Kevin R. Reitz, The New
Sentencing Conundrum, 105 COLUM. L. REV. 1082, 1119 (2005).
Because the Court has long upheld discretionary sentencing
schemes, Chief Justice Rehnquist stated for the Court in 1986
(before the Apprendi-Blakely-Booker cases): “We have some
difficulty fathoming why the due process calculus would change
simply because the legislature has seen fit to provide sentencing
courts with additional guidance.” McMillan, 477 U.S. at 92.
Notwithstanding weighty arguments of the kind made by
Chief Justice Rehnquist, the adherents to the real-elements-of-
the-offense conception have maintained their approach – and
continued to accept discretionary sentencing schemes as a
constitutionally acceptable alternative. See Booker, 543 U.S. at
233. As a result, the real-elements-of-the-offense approach to
the Constitution seems to mean the following: Legislatures may
enact: (i) a discretionary sentencing scheme where the sentencing
judge has complete discretion to impose a sentence within the
legal range that applies to the crime found by the jury, and the
judge may determine the sentence based on the judge’s own
subsidiary factual determinations, other considerations, or no
stated rationale at all; or (ii) a mandatory sentencing scheme
where the sentencing judge has no discretion to make factual
determinations to increase a sentence. But legislatures, under
this real-elements-of-the-offense approach, may not enact an
7
intermediate sentencing scheme where the sentencing judge has
structured discretion – in other words, where the sentencing
judge must make factual determinations (such as “Did the
defendant carry a gun during the drug transaction?”) in order to
increase a sentence.
How do post-Booker sentencing practices square with the
various constitutional approaches described above?
If the deference-to-legislatures conception is correct, then
current federal sentencing practices, which largely mirror
pre-Booker practices, are obviously constitutionally permissible.
Indeed, if this conception is correct, then the Booker
constitutional opinion is incorrect and the Sentencing Guidelines
should apply as promulgated and made mandatory by Congress.
If the real-elements-of-the-offense approach is correct,
however, then current federal sentencing practices may be in
tension with the Constitution. That is because the current system
– in practice – works a lot like the pre-Booker system: District
judges are obliged to apply the Guidelines, and certain facts used
to increase a sentence (beyond what the defendant would have
received based on the offense of conviction) are found by the
judge, not by the jury beyond a reasonable doubt.