U.S. v. Coles

• Decision Date: 08 April 2005
• Docket Number: No. 03-3113.,03-3113.
• Parties: UNITED STATES of America, Appellee v. Terence COLES, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 764

403 F.3d 764

UNITED STATES of America, Appellee v. Terence COLES, Appellant

No. 03-3113.

United States Court of Appeals, District of Columbia Circuit.

April 8, 2005.

Appeal from the United States District Court (USDC) for the District of Columbia (No. 02cr00204-01).

Jenifer Wicks and Bernard S. Grimm were on the brief for appellant.

Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Roy W. McLeese, III, Anthony M. Alexis, and SuzAnne C. Nyland, Assistant U.S. Attorneys, were on the brief for appellee.

Before: EDWARDS, SENTELLE, and GARLAND, Circuit Judges.

PER CURIAM:

This case raises an important issue left open by the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) concerning the application of the plain-error doctrine to appeals from sentences rendered under the Federal Sentencing Guidelines before the Supreme Court ruled that they are advisory rather than mandatory. In addressing this issue, we align ourselves generally with the decisions of the Second Circuit in United States v. Crosby, 397 F.3d 103 (2d Cir.2005), and the Seventh Circuit in United States v. Paladino, 401 F.3d 471 (7th Cir.2005), reh'g en banc denied, id. (7th Cir. Feb. 25, 2005), and most particularly with the approach adopted by the Seventh Circuit. Because the record is insufficient for us to determine with confidence whether the defendant suffered prejudice from the Booker error in this case, we hereby remand the record to the District Court so that it may determine whether it would have imposed a different sentence, materially more favorable to the defendant, if sentencing had taken place under the post-Booker sentencing regime.

I.

Terence Coles was convicted of conspiracy, two counts of bribery, and two counts of fraud, in violation of federal and District of Columbia law, for his participation in a scheme to obtain grant money fraudulently from the District of Columbia's Escheated Estates Fund while he was the Special Assistant to the Secretary of the District of Columbia. See 18 U.S.C. § 201(b)(2) (2000) (bribery); D.C. CODE ANN. §§ 22-1805a (2001) (conspiracy); id. § 22-3221(a) (fraud in the first degree). The District Court sentenced Coles on the bribery counts pursuant to the Sentencing Guidelines, under which Coles was assigned a base offense level of 10 and a criminal history category of I. See UNITED STATES SENTENCING COMMISSION, GUIDELINES MANUAL §§ 2C1.1(a), 4A1.1 (2001). The District Court added two levels to the base offense level, because "the offense involved more than one bribe," id. § 2C1.1(b)(1), and it added eight additional levels, because "the offense involved a payment for the purpose of influencing ... any official holding a high-level decision-making or sensitive position," id. § 2C1.1(b)(2)(B). These adjustments raised Coles' offense level from 10 to 20, increasing the applicable sentencing range from 6-to-12 months to 33-to-41 months. Id. ch. 5, pt. A (sentencing table).

The District Court sentenced Coles to 36 months' imprisonment for each of the federal bribery counts, to run concurrently. The trial court also imposed 36-month prison sentences for each of the three D.C.Code convictions for conspiracy and fraud, all to run concurrently with the bribery sentences.

Coles appealed to this court, challenging both his conviction and his sentence. We affirmed Coles' conviction, but held the challenge to his sentence in abeyance pending the Supreme Court's decision in Booker. See United States v. Coles, No. 03-3113, 2004 WL 2862212 (D.C.Cir. Dec.13, 2004) (per curiam). Following the Court's decision in Booker, the parties submitted supplemental briefs addressing the impact of that decision on the sentence in this case. We now address Coles' challenge to his sentence.

II.

The Court's decision in Booker is cogently summarized in Crosby:

Since November 1, 1987, sentences in federal criminal cases have been determined pursuant to the Sentencing Reform Act of 1984 ("SRA"), Pub.L. 98-473, Title II, §§ 211-238, 98 Stat.1987 (1984), and the Guidelines issued by the United States Sentencing Commission, see U.S.S.G. §§ 1A1.1-8F1.1....

.... The Supreme Court's decision in Booker/Fanfan significantly altered the sentencing regime that has existed [under] the Guidelines.... The Court's two-part decision consists of an opinion by Justice Stevens adjudicating the merits of the Sixth Amendment issue ("Substantive Opinion"), and an opinion by Justice Breyer setting forth the remedy ("Remedy Opinion")....

... In the Substantive Opinion, the Court ruled that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Substantive Opinion, [___ U.S. at ___, 125 S.Ct. at 756]. This ruling, the Court explained, was required for "enforcement of the Sixth Amendment's guarantee of a jury trial in today's world." Id. at [751]....

The Substantive Opinion emphasized that it was the mandatory aspect of these determinate sentencing regimes that implicated the Sixth Amendment's requirement of a jury trial:

We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges.... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

Id. at [750] (internal citations omitted).

....

In the Remedy Opinion, the Court ruled that implementation of the Substantive Opinion required that two provisions of the SRA be "sever[ed] and excise[d]." Remedy Opinion, ___ U.S. at ___, 125 S.Ct. at 764. These are subsection 3553(b)(1), mandating use of the Guidelines, and section 3742(e), which "sets forth standards of review on appeal." Remedy Opinion, id.

Having severed and excised the SRA's standards governing review of sentences, the Court in the Remedy Opinion replaced them with "a practical standard of review already familiar to appellate courts: review for `unreasonable [ness].'" Id. at 765 (quoting subsection 3742(e)(3))....

Although the most significant aspect of the Remedy Opinion is the excision of subsection 3553(b)(1), with the result that the use of the Guidelines to select a sentence is no longer mandatory, a critically important aspect of Booker/Fanfan is the preservation of the entirety of the SRA with the exception of only the two severed provisions. As the Court noted in the Remedy Opinion, "The remainder of the Act `function[s] independently.'" Remedy Opinion, ___ U.S. at ___, 125 S.Ct. at 764 (citing Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)). Notably, the Court explained, "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Id. at 766.

Crosby, 397 F.3d at 107-10 (footnotes omitted) (alterations in original).

The Court in Booker instructed that its holdings should be applied "to all cases on direct review." ___ U.S. at ___, 125 S.Ct. at 769. The Court, however, did not "believe that every appeal will lead to a new sentencing hearing." Id. Rather, the Court explained, "we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain-error' test." Id.

III.

Coles contends that his sentence should be vacated in light of Booker. Specifically, he argues that his Sixth Amendment rights were violated, because his sentence was enhanced by the trial court based on facts neither admitted by him nor proved to a jury beyond a reasonable doubt. Although Coles objected to the District Court's findings of fact at sentencing, he raised no arguments in the District Court questioning either the constitutionality of the Guidelines or their mandatory application. Accordingly, we review Coles' Booker claim only for plain error. FED. R. CRIM. P. 52(b).

Under the plain-error standard of Rule 52(b), "there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)) (alteration in original). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error `seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. at 467, 117 S.Ct. 1544 (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks and alteration omitted).

It is clear that Coles satisfies the first two elements of the plain-error test, for the District Court applied the Guidelines on the assumption that they were mandatory. Following Booker, this was error and it is undoubtedly "plain." And the Supreme Court has made it clear that "where the law at the time of trial was settled and clearly contrary to the law at the time of appeal ... it is enough that an error be `plain' at the time of appellate consideration." Id. at 468, 117 S.Ct. 1544. The Government does not dispute that Coles has satisfied the first two elements of the plain error test. See Supplemental Br. for Appellee at 7 n.5.

We are also convinced that, if the District Court's error was prejudicial, the error would "seriously affect[ ] the fairness, integrity, or public reputation of judicial proceedings." As...