United States Court of Appeals
For the First Circuit
No. 04-2709
UNITED STATES OF AMERICA,
Appellee,
v.
PAUL M. ANDERSON,
Defendant, Appellant.
APPEAL FORM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Campbell and Bowman,* Senior Circuit Judges,
and Lipez, Circuit Judge.
Edward E. Eliot on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula
Silsby, United States Attorney, was on brief, for appellee.
June 29, 2006
*
Of the Eighth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Appellant Paul M. Anderson
challenges his sentence after pleading guilty to charges of
distributing and possessing with intent to distribute cocaine and
cocaine base. The district court sentenced Anderson to 57 months
in prison, with concurrent terms of four years of supervised
release, and a $600 mandatory penalty. Anderson argues that the
district court erred by applying a two-level sentencing enhancement
for firearm possession under the sentencing guidelines. He also
challenges his sentence under United States v. Booker, 543 U.S. 220
(2005), which was decided after the court sentenced Anderson.
While we reject his argument that there was error in the court's
application of a guidelines enhancement, we remand his case for re-
sentencing under Booker. The government had the burden of
demonstrating that the application of the mandatory sentencing
guidelines by the district court was harmless error. It has not
done so.
I.
On November 14, 2003, a confidential informant told drug
agents that Anderson had agreed to sell the informant cocaine at
Anderson's house later that day. The agents followed the informant
to Anderson's house, where Anderson sold him cocaine. Over the
next four weeks, the informant made several additional controlled
buys of cocaine and crack cocaine from Anderson in his house. On
January 7, 2004, agents searched Anderson's house pursuant to a
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warrant and seized several baggies, each of which contained
cocaine. During the search, agents also seized a loaded Smith and
Wesson 9mm semi-automatic handgun, found in the living room along
with a ledger recording money owed to Anderson. The agents
arrested Anderson.
On August 26, 2004, Anderson appeared in district court
and pled guilty to a six-count indictment. Counts I through III
and VI charged him with distributing and possessing with intent to
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). Counts IV and V alleged distribution and possession
with intent to distribute more than 5 grams of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(B).
The pre-sentence investigation report ("PSI") found a
base offense level of 28 and a Criminal History of I. The PSI then
recommended a two-level reduction for the defendant's acceptance of
responsibility and reported that the government would recommend a
further one-level reduction. The PSI also recommended a two-level
enhancement for firearm possession. The PSI recommended against a
"safety valve" reduction. The total adjusted offense level in the
PSI was 27, yielding an initial guidelines sentencing range of 70-
87 months.
The PSI also noted that Anderson and his mother stated
that Anderson had been dealing with serious mental health problems
since childhood. While on pretrial supervision, Anderson met with
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Dr. Jeremy Spiegel, a psychiatrist, who observed symptoms of
multiple anxiety disorders, including obsessive-compulsive
disorder, panic disorder with agoraphobia, anxiety, and social
anxiety. The PSI noted that Anderson might request a downward
departure based on his mental health problems.
Anderson objected to the PSI. He disputed the
recommended two-level firearm enhancement, stating that the gun was
not used in connection with the crime because "this firearm was
purchased as personal protection after a series of armed home
invasions in Sanford, Maine in late 2000." He also argued that his
possession of a gun did not preclude the benefits of the "safety
valve" reduction.
At the sentencing hearing, the government agreed that the
defendant would be eligible for the safety valve reduction because,
it stated, "[the prosecution] would have to provide the court with
some evidence that the gun was used in connection with the offense,
which [the prosecution] ha[s] no such evidence." The district
court applied the two-level safety valve reduction.
The government then argued that, notwithstanding the
application of the safety valve reduction, the two-level firearm
enhancement should apply. The defendant challenged the application
of the enhancement, arguing that, under Blakely v. Washington, 542
U.S. 296 (2004), the government had to prove that the gun was
actually connected with the offense in order for the firearm
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enhancement to apply. Therefore, according to the defendant, the
enhancement was inapplicable because the government stated that it
could not prove this fact. The district court disagreed and
applied the enhancement.
The defendant also asked the district court for a
downward departure on the basis of his serious mental health
problems. The district court noted that the Guidelines discouraged
departures on the basis of mental health unless the facts took the
case outside of the "heartland" of other cases involving defendants
with mental health problems. After carefully considering the
facts, the district court noted that "[i]t's unfortunately the case
that Mr. Anderson's condition is not outside the heartland" and
that, although his condition was serious and severe, the court
"see[s] a number of severe or serious mental health issues."
The district court calculated a final offense level of
25, yielding a guidelines sentencing range of 57-71 months. The
district court imposed a sentence of 57 months in prison, with
concurrent terms of four years of supervised release, and a $600
mandatory penalty. The judge stated that the crime "deserves the
punishment that is being imposed," and noted that the sentence, at
the bottom of the guidelines range, was "a legitimate and adequate
sentence."
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II.
Anderson raises two main arguments on appeal. First, he
argues that the district court improperly applied the two-level
firearm sentencing enhancement under the United States Sentencing
Guidelines Manual ("U.S.S.G.") § 2D1.1(b)(1). Second, he
challenges his sentence in the wake of Booker, where the Supreme
Court held that the guidelines must be treated as advisory rather
than mandatory. We address his arguments in turn.
A. Application of the Firearm Sentencing Enhancement
We review a district court's interpretation of the
guidelines de novo and its factual findings for clear error.
United States v. Robinson, 433 F.3d 31, 35, 38 (1st Cir. 2005). In
this case, the district court applied a two-level sentencing
enhancement for firearm possession under U.S.S.G. § 2D1.1(b)(1),
noting that the defendant acknowledged that the police had found a
loaded handgun in his apartment, and that the defendant stated that
he bought the gun for "personal protection after a series of armed
home invasions" in his area. The court also applied a two-level
reduction under the "safety valve" provision of U.S.S.G. § 5C1.2.
The defendant and the prosecution agreed that the provision was
applicable, despite its requirement that the defendant show that he
was not in possession of the firearm in connection with the
offense.
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The defendant argues that, because the government
conceded that the safety valve applies, the district court erred in
applying the two-level sentencing enhancement for gun possession.
The district court found nothing contradictory about applying both
the enhancement and the reduction, concluding that different
standards apply for each.
We agree with the district court. The burdens for
establishing the applicability of the safety valve reduction and
the weapon enhancement are different. Section 5C1.2, the "safety
valve" provision, permits a two-level reduction in offense level if
the defendant and the offense meet certain enumerated criteria.
See United States v. McLean, 409 F.3d 492, 500 (1st Cir. 2005).
Pertinent to this case, "the safety valve is unavailable to a
defendant who 'possesses a firearm . . . in connection with the
offense.'" Id. (quoting U.S.S.G. § 5C1.2). Thus, the defendant
has the burden of establishing, by a preponderance of the evidence,
that he did not possess the firearm in connection with the offense.
See United States v. Miranda-Santiago, 96 F.3d 517, 529 n.25 (1st
Cir. 1996).
Section 2D1.1(b)(1) permits a two-level enhancement "[i]f
a dangerous weapon (including a firearm) was possessed." To garner
this enhancement, the government has the initial burden of
establishing "that a firearm possessed by the defendant was present
during the commission of the offense." United States v. McDonald,
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121 F.3d 7, 10 (1st Cir. 1997). Once the government has made that
showing, "the burden shifts to the defendant to persuade the
factfinder that a connection between the weapon and the crime is
clearly improbable." Id. (emphasis added); see also U.S.S.G.
§ 2D1.1(b)(1), cmt. n.3 ("The adjustment should be applied if the
weapon was present, unless it is clearly improbable that the weapon
was connected with the offense.").
Thus, the burden on the defendant is different for these
two sentencing provisions. The application of the safety valve
(which requires the defendant to establish by a preponderance of
the evidence that he did not possess the firearm in connection with
the offense) does not necessarily mean that the defendant can meet
the heavier burden, once the government shows that the firearm was
present during the commission of the offense, of establishing that
it was clearly improbable that the gun was used in connection with
the offense.
Other courts have addressed similar arguments regarding
the interaction of the safety valve adjustment under § 5C1.2 and
the firearm enhancement under § 2D1.1(b)(1).1 At least two
1
We have previously held, in the co-conspirator liability
context, that "any automatic equation of the possession of a
firearm by another and unavailability of the safety valve is
mistaken." United States v. Figueroa-Encarnacion, 343 F.3d 23, 35
(1st Cir. 2003) (concluding that a co-conspirator's firearm
possession may not be attributable to the defendant for purposes of
determining the applicability of the safety valve); see also United
States v. Zavalza-Rodriguez, 379 F.3d 1182, 1187 (10th Cir. 2004)
(same). Because the basis for responsibility in these co-
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circuits have concluded that the application of a firearm
enhancement under § 2D1.1(b) does not necessarily preclude a safety
valve reduction under § 5C1.2.2 See United States v. Bolka, 355
F.3d 909, 915 (6th Cir. 2004) (noting the different burdens of
proof under the two sentencing provisions); United States v.
Nelson, 222 F.3d 545, 551 (9th Cir. 2000) (same). In other words,
these courts held that the defendant's failure to meet the higher
burden of proof set forth in the firearm enhancement provision of
the guidelines did not necessarily preclude the defendant from
meeting the lower burden of proof set forth in the safety valve
reduction provision.
In support of his position that the application of the
safety valve reduction precludes the application of the firearm
enhancement in his case, Anderson relies primarily on United States
v. Vasquez, 161 F.3d 909 (5th Cir. 1998). In Vasquez, the Fifth
Circuit stated that "§ 2D1.1(b)(1) and § 5C1.2(2) . . . should be
conspirator liability cases differs from the case presented here,
however, we do not base our holding on this precedent.
2
The district court in both of those cases held that the
application of the firearm enhancement during sentencing
automatically precluded the defendant from receiving a safety valve
reduction. Thus, the question on appeal in those cases was whether
the district court erred in automatically precluding the defendants
from the safety valve reduction. That question differs from what
we are considering here -- whether the application of the safety
valve reduction in Anderson's case should have automatically
precluded the application of the firearm enhancement. However, the
discussion of the differing burdens for the safety valve reduction
and firearm enhancement provisions in those cases is helpful for
our analysis.
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analyzed analogously." Id. at 912. However, the Fifth Circuit's
description of the government's burden under § 2D1.1(b)(1) differs
from the analysis of that burden in our precedent. The Fifth
Circuit states that "[t]he government has the burden of proof under
§ 2D1.1 of showing by a preponderance of the evidence that a
temporal and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant." Id. (internal quotation
marks and citation omitted). By contrast, as explained above, we
have held that the government must show that a firearm was present
during the commission of an offense. The burden then shifts to the
defendant to show that it is clearly improbable that the gun was
used in connection with the offense. Because of these differing
approaches, the Fifth Circuit's reasoning is inapplicable in this
case. See Nelson, 222 F.3d at 550 n.3 (distinguishing Vasquez
based on its different approach to the burden under § 2D1.1(b)(1)).
We thus discern no legal error in the district court's
application of the firearm enhancement given its acceptance of the
safety valve reduction. Nor were the district court's findings
related to the firearm enhancement clearly erroneous. The
defendant conceded that there was a loaded gun in the home in which
he sold drugs. On that basis alone, the government met its burden
of establishing that the gun was present at the commission of the
offense. See McDonald, 121 F.3d at 10 ("[T]he prosecution need
only prove that the defendant possessed the weapon during the
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currency of the offense, not necessarily that he actually used it
in perpetrating the crime or that he intended to do so."). In his
objection to the PSI and during sentencing, defense counsel argued
only that Anderson bought the gun after a series of home invasions
took place in his area. This fact does not establish that a
connection between the weapon and the crime is clearly improbable.
See United States v. Corcimiglia, 967 F.2d 724, 727 (1st Cir. 1992)
("[W]hen the weapon's location makes it readily available to
protect either the participants themselves during the commission of
illegal activity or the drugs and cash involved in the drug
business, there will be sufficient evidence to connect the weapons
to the offense conduct."). Thus, we discern no error in the
district court's application of the sentencing enhancement.3
3
Anderson also appears to challenge the district court's
application of the firearm sentencing enhancement under Booker.
Specifically, he argues that his concession that he had a loaded
gun in his home does not amount to proof beyond a reasonable doubt
that the gun was used in connection with the offense. This
challenge is a non-starter. Booker does not require the
government, in an advisory guidelines system, to assume burdens
that are allocated to the defendant under the guidelines, or change
the applicable burden from preponderance of the evidence to proof
beyond a reasonable doubt. See United States v. Yeje-Cabrera, 430
F.3d 1, 17 (1st Cir. 2005) ("[T]he Booker error is not that a judge
(by a preponderance of the evidence) determined facts under the
Guidelines which increased a sentence beyond that authorized by the
jury verdict or an admission by the defendant; the error is only
that the judge did so in a mandatory Guidelines system."(internal
quotation marks omitted)); United States v. Pérez-Ruiz, 421 F.3d
11, 14-15 (1st Cir. 2005) ("Under the 5-4 constitutional ruling in
Booker, judge-made enhancements under the guidelines that result in
a sentence greater than the sentence that could be imposed based
solely on the facts found by the jury do amount to Sixth Amendment
violations if the guidelines are treated as mandatory; but under
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B. Booker error
The parties agree that Anderson preserved his Booker
claim by raising a Blakely argument in the district court.4 See
United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005)
("The argument that a Booker error occurred is preserved if the
defendant below argued Apprendi or Blakely error or that the
Guidelines were unconstitutional."). We thus review his preserved
Booker claim for harmless error. United States v. Benedetti, 433
F.3d 111, 119 (1st Cir. 2005).
The government has the burden of establishing that the
preserved Booker error was harmless. See United States v. Vázquez-
Rivera, 407 F.3d 476, 489 (1st Cir. 2005). "The standard of proof,
however, depends on whether the error is conceived of as
constitutional." Id. If the error is constitutional in nature,
"the government has the burden of proving beyond a reasonable doubt
that the error did not affect the defendant's substantial rights."
Id. If the error is not constitutional in nature, the government
the companion 5-4 remedial ruling in Booker, this problem is washed
out by treating the guidelines as advisory. A defendant sentenced
under the mandatory regime may be entitled to re-sentencing under
the advisory one . . . but Booker both created and cured the
constitutional error at the same time.").
4
Specifically, the government stated in its brief that, "[i]n
this case, although Anderson's argument below is different from the
one he makes on appeal, the record shows that the court and the
parties were keenly aware of Booker's predecessor, Blakely v.
Washington, 542 U.S. 296 (2004). As a result, the Government
agrees that Anderson's appellate claim was preserved and will
shoulder the burden of demonstrating that any error was harmless."
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has the burden of demonstrating the absence of any "grave doubt"
regarding the harmlessness of the error. See id. In the Booker
context, we have explained that constitutional error exists "where
a mandatory Guidelines sentence was imposed on the basis of judge-
found facts," in violation of the Sixth Amendment. Id. We have
not previously decided "whether Booker error arising out of the
mandatory application of the Guidelines alone . . . is
constitutional in nature." Id. at 490 n.7.
In this case, the government acknowledged that it has the
difficult burden of proving harmless error, but it did not specify
which specific standard is applicable. Because the government only
had the burden at sentencing of establishing the presence of the
gun for the firearm enhancement, and Anderson conceded that his gun
was present in his home where the drug buys occurred, it is
arguable that the Booker error in this case involves only the
mandatory application of the guidelines. However, regardless of
whether such an error is constitutional, we conclude that the
government has not met its burden of proving harmless error. The
government argues that "nothing in the record suggests that, given
a chance to reflect again, the lower court would select anything
other than the 57-month term it chose initially." To support this
assertion, the government points to the judge's statements during
sentencing that the crime "deserves the punishment that is being
imposed," and that the sentence was "a legitimate and adequate
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sentence." However, the government fails to account for the
district court's consideration and discussion of Anderson's
"serious mental health issues," presented in support of his request
for a downward departure.
In addressing this request, the district court correctly
noted that the guidelines discourage departures on the basis of
mental health problems unless the facts take the case outside of
the "heartland" of other cases involving defendants with mental
health problems. See, e.g., United States v. Maldonado-Montalvo,
356 F.3d 65, 74 (1st Cir. 2003) (explaining that, under the
guidelines, "departures based upon a defendant's mental condition
are discouraged, which means that the sentencing court must first
make a finding that the mental condition is extraordinary or
atypical" (internal citations omitted)); United States v. Studley,
907 F.2d 254, 258 (1st Cir. 1990) ("[The guidelines] specifically
state[] that defendant's mental or emotional conditions are not
ordinarily relevant. If they are to be considered, the district
court must expressly find that the defendant's particular mental or
emotional condition is 'atypical.'" (emphasis omitted)). Our
precedent has been "stringent in distinguishing between serious
mental health problems and a truly 'extraordinary' case" under the
guidelines. United States v. Derbes, 369 F.3d 579, 583 (1st Cir.
2004); see also Maldonado-Montalvo, 356 F.3d at 74 (concluding
that defendant's "severe or major depression" did not rise to the
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level of "extraordinary" and thus did not warrant downward
departure).
After carefully considering the facts presented on
Anderson's mental health history, the court found that "[i]t's
unfortunately the case that Mr. Anderson's condition is not outside
the heartland" and that, although his condition was serious and
severe, the court "see[s] a number of severe or serious mental
health issues." This is a classic mandatory guidelines analysis.
Taking into account the heavy burden of the government to
establish harmless error, we must question the government's
assertion that the district court would not sentence Anderson more
leniently in a post-Booker world. We have explained that, "under
the advisory guidelines scheme set in place by Booker, a sentencing
court will ordinarily begin by calculating the applicable
guidelines range and then determine whether other factors 'warrant
an ultimate sentence above or below the guideline range.'" United
States v. Zapete-Garcia, 447 F.3d 57, 59 (1st Cir. 2006) (quoting
United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.
2006) (en banc)); see also United States v. Saez, 444 F.3d 15, 17
(1st Cir. 2006) ("[Post-Booker,] the guideline range, taking
applicable departures into account, is the starting point for
analysis but [] the proponent of a higher or lower sentence is free
to adduce reasons and facts to support [a different sentence].").
Although rejecting Anderson's request for a downward departure
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under the mandatory guidelines system, the district court
acknowledged that it was "certainly clear that Mr. Anderson has
severe mental health issues." Moreover, the district court
sentenced him to the lowest end of the guidelines range. Given the
burden on the government, we are not persuaded -- either as to the
absence of a "grave doubt" or beyond a reasonable doubt -- that the
district court would not have imposed a lower sentence in this case
if the guidelines had been advisory rather than mandatory.
III.
For the reasons explained above, we vacate the
defendant's sentence and remand to the district court for re-
sentencing. We express no view as to whether the district court
should ultimately alter the sentence on remand.
So ordered.
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