United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-20669
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON PAUL WALTERS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-Appellant Jason Paul Walters (“Walters”) pleaded
guilty to being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“count 1”), and to using or
carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“count 2”). He
appeals the 15-month sentence imposed on the basis of count 1
pursuant to United States v. Booker, 543 U.S. ---, 125 S. Ct. 738
(2005). Because we find that the error in this case was not
harmless, we VACATE Walters’s sentence and REMAND for resentencing.
BACKGROUND
On December 15, 2002, Walters was charged by a two-count
indictment with possession of a firearm subsequent to a felony
conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and with using or carrying a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
On February 4, 2004, without a written agreement, Walters entered
a plea of guilty to both counts of the indictment.
The presentence report (“PSR”) determined that the
imprisonment range under the Guidelines on count 1 was 15 to 21
months, see USSG § 2K2.1(a)(6),1 and that the imprisonment range on
count 2 was the statutory mandatory consecutive sentence of 60
months, see 18 U.S.C. § 924(c)(1)(A)(i). Walters did not make
objections to the PSR, which the district court adopted at
sentencing on August 4, 2004. The district court commended Walters
for attending drug treatment and for not relapsing into drug usage.
Defense counsel argued that the minimum combined 75-month sentence
“seems too much” and requested the bottom of the Guideline sentence
1
Although § 2K2.1(b)(5) normally triggers a 4-level increase
where the defendant used the firearm in connection with other
felonies, which would have increased Walters’s base offense level
to 18, the probation officer noted that Application Note 2 to §
2K2.4 instructs that no adjustment under § 2K2.1(b)(5) should be
applied because Walters’s conviction under count 2 required a
mandatory consecutive sentence. The probation officer did not
recommend any sentencing enhancements. After applying a 2-level
reduction for acceptance of responsibility under § 3E1.1, Walters’s
total offense level was 12 and his criminal history was III.
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on count 1. In response, the district court agreed and stated:
“Well, I’m going to give you the bottom of the guideline range. I
think that it’s an unfairly severe sentence also, frankly, but I’m
bound by the statute. I mean, I have very little wiggle room.
This 60 month consecutive is a killer, if you ask me.”
The district court then sentenced Walters to serve 15 months
on count 1 and a consecutive 60 months on count 2. The court also
imposed concurrent two-year and five-year terms of supervised
release, as well as a $200 special assessment, but no fine. After
imposition of the sentence, the court then stated:
I don’t know that I have the power to do this because the
924(c) count just requires everything be consecutive –
that is, the 60 months be consecutive with anything under
the other charge. I think I can’t do anything, and so
I’ll impose this sentence both under the guidelines and
in the exercise of my unfettered discretion if the
guidelines were to be declared unconstitutional in whole
or in part.
Defense counsel objected and asserted that:
if the guidelines were declared unconstitutional, I would
like to come back and argue for a 60-month sentence, not
a 75-month sentence, because, as the count’s already
pointed out, this seems to be unduly severe from the
standpoint of viewing this case outside of the framework
of the guidelines.
The district court agreed with counsel and stated, “in the exercise
of my unfettered discretion, I would impose a 60-month sentence.
That’s an alternative and it’s only in the event the guidelines are
declared unconstitutional. In total.” Walters timely appealed.
DISCUSSION
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This Court differentiates between the two types of error
addressed in Booker. See United States v. Villegas, 404 F.3d 355,
364 (5th Cir. 2005); United States v. Mares, 402 F.3d 511, 520 n.9
(5th Cir. 2005). Booker error is found where the district court
applied the mandatory Guidelines and enhanced a defendant’s
sentence on the basis of facts neither admitted by him nor found by
a jury beyond a reasonable doubt, in violation of the Sixth
Amendment. See Booker, 125 S. Ct. at 756; Villegas, 404 F.3d at
364. What this Court has termed “Fanfan error” is found where the
district court applied the mandatory Guidelines to enhance a
defendant’s sentence absent any Sixth Amendment Booker error. See
United States v. Martinez-Lugo, 411 F.3d 597, 2005 WL 1331282, at
*2 (5th Cir. Jun. 7, 2005); Villegas, 404 F.3d at 364.
Here, Walters does not make a Booker argument. Instead,
Walters argues that a sentence imposed under the mandatory
Guidelines system is erroneous under the new post-Booker sentencing
regime. Walters bases this on the Supreme Court’s rejection of a
remedy that would leave the Guidelines advisory in any case where
their application would result in a Sixth Amendment violation but
mandatory in all other cases. See Booker, 125 S. Ct. at 768 (“Such
a two-proposal system seems unlikely to further Congress’ basic
objective of promoting uniformity in sentencing.”). Thus, Walters
asserts Fanfan error.
The government agrees with Walters that his objection in the
4
district court to the court’s alternative sentence, in the event
the Guidelines were held unconstitutional, preserved his Fanfan
challenge. Regarding the standard of review, Walters urges that
the Fanfan error argued here is structural and thus insusceptible
of harmless error analysis. See Neder v. United States, 527 U.S.
1, 8-9 (1999). This Court has rejected that exact contention.
Martinez-Lugo, 2005 WL 1331282, at *2 (finding argument
inconsistent with the requirement in Mares and Villegas “that the
error affect the particular defendant’s substantial rights, drawing
no distinction between a ‘Booker’ error and a ‘Fanfan’ error for
the purposes of employing plain error review”)(emphasis in
original).
We review a case where the defendant preserved his Fanfan
challenge in district court under the Rule 52(a) harmless error
standard. See Mares, 402 F.3d at 520 n.9 (“[I]f . . . the issue
presented in Fanfan is preserved in the district court by an
objection, we will ordinarily vacate the sentence and remand,
unless we can say the error is harmless under Rule 52(a) of the
Federal Rules of Criminal Procedure.”); cf. Martinez-Lugo, 2005 WL
1331282, at *2 (applying plain error review where Fanfan issue not
preserved in district court). Under harmless error review, “[a]ny
error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” FED. R. CRIM. P. 52(a).
This Court determined in the context of a Fanfan challenge
5
that “[i]t is clear after Booker that application of the Guidelines
in their mandatory form constitutes error that is plain.” United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005);
see also Martinez-Lugo, 2005 WL 1331282, at *2 (noting Fanfan error
is both “plain” and “error”). Thus, the only question is whether
the government has met its burden to show harmless error beyond a
reasonable doubt in the imposition of Walters’s sentence. See
United States v. Pineiro, 410 F.3d 282, 286 (5th Cir. 2005); see
also United States v. Olano, 507 U.S. 725, 734-35 (1993) (noting
inquiry under harmless error to determine prejudice is the same as
with plain error, except burden falls on the government, not the
defendant); Chapman v. California, 386 U.S. 18, 24 (1967)
(“[B]efore a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond
a reasonable doubt.”).
Whether the government has shown harmless error in the imposition
of Walters’s sentence.
The government notes that the district court could not revisit
the 60-month statutorily mandated sentence imposed on count 2.
Indeed, Walters makes no argument to that effect. But the
government contends that in any event, the imposition of the 15-
month sentence as to count 1 constitutes harmless error because it
was a reasonable sentence. To that end, the government urges that
the district court took into account the Guidelines, defense
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counsel’s arguments and Walters’s statements before sentencing, and
the PSR, which was prepared in compliance with Federal Rule of
Criminal Procedure 32(d). In addition, the government argues that
although the district court indicated that it believed the
mandatory 60-month consecutive sentence on count 2 was unfairly
severe, the court recognized it was bound by the statute.
According to the government’s characterization, the district court
gave no indication that it believed the 15-month sentence as to
count 1 was too harsh, except that the court stated that if the
Guidelines were declared totally unconstitutional, then it would
impose a 60-month sentence.
The government also contends that for the district court to
resentence Walters to a 60-month term of imprisonment, the court
would have to reduce Walters’s sentence on count 1 to probation;
and the court never indicated that it considered probation to be an
appropriate sentence for a felon-in-possession charge, especially
where the PSR showed Walters had two prior drug convictions.
Finally, the government argues that because the Guidelines were not
declared totally unconstitutional and the district court must still
consider the application of the Guidelines in a post-Booker
environment, the court would likely resentence Walters to exactly
the same 15-month sentence on count 1 and thus to the same 75-month
combined sentence on both counts.
Walters argues that the government fails to show harmless
7
error beyond a reasonable doubt. Walters points to the language of
the district court at sentencing indicating that in a post-Booker
world that allowed for “unfettered discretion,” it would choose to
exercise that discretion to conclude that the 75-month sentence it
felt constrained to impose was harsher than necessary in Walters’s
case (that is, to meet the purposes of sentencing identified in 18
U.S.C. § 3553(a)) and would choose to impose only the statutorily
mandated 60-month sentence pursuant to count 2 if the Guidelines
were declared unconstitutional. Indeed, Walters insists the
district court could not have more clearly expressed such intent
than by saying, “[I]n the exercise of my unfettered discretion, I
would impose a 60-month sentence.”
After close examination of the sentencing hearing transcript,
we find that the Fanfan error in this case was prejudicial to
Walters. The Fanfan error affected the sentence Walters received
because the mandatory nature of the Guidelines at the time of his
sentencing forced the district court to impose at least the minimum
15-month term for count 1, in addition to the statutorily mandated
60-month consecutive sentence on count 2, where the court indicated
that Walters’s total imposed sentence of 75 months seemed too
harsh. See Mares, 402 F.3d at 521 (noting that “the standard for
determining whether an error affects substantial rights” is that
“the error ‘must have affected the outcome of the district court
proceedings’”) (quoting Olano, 507 U.S. at 734); see also Pineiro,
8
410 F.3d at 286 (explaining the standard as “the district court
would have imposed the same sentence absent the error”).
The government is correct that the district court was “bound
by the statute,” 18 U.S.C. § 924(c)(1)(A)(i), to impose the 60-
month sentence on count 2 consecutively to any other sentence
(here, that imposed on count 1). However, we disagree with the
government’s contention that the district court gave no indication
that it believed the 15-month sentence on count 1 was too harsh.
In response to defense counsel’s contention that “75 months seems
too much” and his request for the minimum Guidelines sentence on
count 1 (here, 15 months), and after Walters had a chance to
allocute, the district court expressly stated that it would impose
the bottom of the Guidelines range on count 1 and that it thought
“it’s an unfairly severe sentence also, frankly” – where “it’s”
likely referred to the 75-month minimum combined total sentence
just referenced by defense counsel. In any event, the district
court also indicated that it felt it had “very little wiggle room”
and thought it could not “do anything” to manipulate Walters’s
sentence in a situation where Walters was subject to the mandatory
Guidelines regime requiring a minimum 15-month sentence on count 1
to be imposed consecutively to the statutorily mandated 60-month
sentence on count 2.
In addition, after the district court indicated it would
impose the 75-month sentence alternatively in the event “the
guidelines were to be declared unconstitutional in whole or in
9
part,” defense counsel objected that:
if the guidelines were declared unconstitutional, I would
like to come back and argue for a 60-month sentence, not
a 75-month sentence, because, as the court’s already
pointed out, this seems to be unduly severe from the
standpoint of viewing this case outside of the framework
of the guidelines.
In response, the court stated, “Now, that might be true. All
right.” The court then elaborated, “No, here’s what I’ll do.
That’s true. They’re both gun charges, too. So, in the exercise
of my unfettered discretion, I would impose a 60-month sentence.”
This exchange similarly indicates that the district court agreed
with defense counsel that it was “true” that a 75-month sentence
affecting both counts “seems to be unduly severe” when viewed
“outside of the framework of” the pre-Booker mandatory Guidelines.
The government is again correct that the district court then
stated, “That’s an alternative and it’s only in the event the
guidelines are declared unconstitutional. In total.” However, we
understand the district court’s statement to mean just what it
plainly reads – that if the Guidelines were declared entirely
unconstitutional, Walters’s alternative total sentence would
certainly only be 60 months. This statement does not mean that the
district court would certainly choose in its post-Booker discretion
to impose 15 months on count 1 for a total of 75 months on “both
gun charges” simply because Booker’s result rendered the
Guidelines, which the court was constrained to apply at Walters’s
sentencing, advisory instead of “unconstitutional” “[i]n total.”
10
Rather, the court gave multiple indications at Walters’s sentencing
hearing that resentencing would likely yield a combined sentence
lower than 75 months, specifically just the mandatory 60 months on
count 2. In light of this record, the government’s contention that
the district court “would likely” resentence Walters to 75 months
in a post-Booker environment fails. Therefore, we find that the
government has not sustained its burden to show harmless error
beyond a reasonable doubt here; Walters is entitled to resentencing
in accordance with Booker.
CONCLUSION
Accordingly, we VACATE Walters’s sentence and REMAND for
resentencing.
VACATED and REMANDED.
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