U.S. v. Fuller, Docket No. 04-4595-CR.

• Decision Date: 17 October 2005
• Docket Number: Docket No. 04-4595-CR.
• Citation: 426 F.3d 556
• Parties: UNITED STATES of America, Appellee, v. John FULLER, also known as King John, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 556

426 F.3d 556

UNITED STATES of America, Appellee, v. John FULLER, also known as King John, Defendant-Appellant.

Docket No. 04-4595-CR.

United States Court of Appeals, Second Circuit.

Argued: May 19, 2005.

Decided: October 17, 2005.

Colleen P. Cassidy, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

Justin S. Weddle, Assistant United States Attorney (Peter G. Neiman, Assistant United States Attorney, of counsel; David N. Kelley, United States Attorney for the Southern District of New York, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: OAKES and CABRANES, Circuit Judges, and GOLDBERG, Judge.^*

JOSÉ A. CABRANES, Circuit Judge.

This appeal arises from a sentence imposed by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) after the Supreme Court's June 24, 2004 decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which raised doubt as to the constitutionality of the then-binding U.S. Sentencing Guidelines, but prior to our August 12, 2004 decision in United States v. Mincey, 380 F.3d 102 (2d Cir.2004), vacated sub nom. Ferrell v. United States, ___ U.S. ___, 125 S.Ct. 1071, 160 L.Ed.2d 1053 (2005), which directed district courts within the Circuit to continue applying the Sentencing Guidelines in a mandatory fashion pending the Supreme Court's resolution of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We consider here whether the District Court's practice of sentencing defendant John Fuller "in the alternative" — that is, stating that the District Court would impose the same sentence regardless of whether the U.S. Sentencing Guidelines were binding or not — during the period after Blakely but before Booker was error in light of the subsequent teachings of the Supreme Court and our related jurisprudence, and if so, whether such error is harmless.

With the benefit of hindsight, we hold that: (1) the District Court erred when sentencing Fuller; (2) Fuller preserved the error by raising a Sixth Amendment objection prior to his sentencing; and (3) the District Court's error was not harmless. Accordingly, we remand the cause to the District Court with instructions to vacate Fuller's sentence and resentence him in conformity with our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir. 2005).

Furthermore, inasmuch as the District Court's four-level upward departure calculation was based upon the Court's analogy between defendant's bartering of drugs in exchange for firearms and the sentencing enhancement prescribed by Section 2K2.1(b)(5) of the U.S. Sentencing Guidelines, we conclude that the extent of the District Court's departure was not an abuse of discretion. We also hold that the District Court provided an adequate, on-the-record statement explaining its upward departure, as required by 18 U.S.C. § 3553(c)(2). Finally, we hold that, in light of 18 U.S.C. §§ 3742(f)(2) and (f)(3), the District Court's failure to explain the basis for its departure in the written judgment does not provide a separate basis for remand in the circumstances presented.

BACKGROUND

Defendant-appellant John Fuller pleaded guilty on May 10, 2001 to bail jumping, in violation of 18 U.S.C. § 3146(a).¹ On May 25, 2001, following a jury trial, Fuller was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).² On December 6, 2001, in satisfaction of both convictions, the District Court sentenced Fuller principally to 151 months' imprisonment in part based on multiple upward departures pursuant to the U.S. Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines"), which the District Court then reasonably understood to be binding.

Fuller appealed his judgment of conviction, arguing, inter alia, that the District Court erred in its application of the Sentencing Guidelines. After affirming Fuller's conviction, we vacated his sentence on grounds not pertinent to the instant appeal and remanded the cause to the District Court for resentencing. United States v. Fuller, 332 F.3d 60, 68 (2d Cir.2003).

On July 14, 2004, in the immediate aftermath of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) — which held unconstitutional the State of Washington's sentencing scheme — but before the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Judge McMahon filed an opinion in United States v. Einstman, 325 F.Supp.2d 373 (S.D.N.Y. 2004), in which she concluded that the Sentencing Guidelines were unconstitutional and that judges must "return to indeterminate sentencing, in which [they]... consider all relevant factors and ... sentence the defendant anywhere between the statutory minimum (if there be one) and the statutory maximum...." Id. at 380-81. Accordingly, at Fuller's resentencing hearing on August 5, 2004, the District Court announced two sentences in the alternative: the first sentence assumed that the Sentencing Guidelines were unconstitutional and therefore non-binding, and the second sentence adhered to the Sentencing Guidelines as if they were constitutional and, hence, binding. Judge McMahon stated on the record: "I am going to violate my usual rule and I am going to impose both types of sentences. So that the Circuit is aware, that is what I decided to do." Tr. of Sentencing Hr'g, Aug. 5, 2004, at 18.

Assuming first that the Sentencing Guidelines were non-binding, the District Court sentenced Fuller principally to 151 months' imprisonment, which consisted of a ten-year term for the firearm offense and a five-year term for the bail-jumping offense.³ Assuming alternatively that the Guidelines were mandatory, the District Court imposed an identical sentence, arriving at 151 months of imprisonment after applying several enhancements and upward departures, including a four-level upward departure pursuant to U.S.S.G. § 5K2.0 on the ground that Fuller had bartered drugs in exchange for firearms. Id. at 21.

At his sentencing hearing, Fuller's counsel raised an objection pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), referring to the Supreme Court's statement that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. Fuller's counsel also objected on the ground that "sentencing in the alternative is illegal in and of itself." Tr. of Sentencing Hr'g, Aug. 5, 2004, at 25.

DISCUSSION

Fuller raises three interrelated claims on appeal. First, he asserts that notwithstanding the District Court's issuance of an "alternative" non-Guidelines sentence, the District Court's sentence did not conform to the requirements of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Def.-Appellant's Supplemental Letter Br. of May 31, 2005, at 3. Fuller further argues that because he properly preserved an objection to this error and because this error was not harmless, we should vacate the District Court's sentence and remand for resentencing in accordance with our opinion in United States v. Fagans, 406 F.3d 138 (2d Cir.2005). See Def.-Appellant's Supplemental Letter Br. of May 24, 2005, at 1-8.

Second, Fuller requests, for the purpose of guiding such a remand, that we reject as "unreasonable" the four-level upward departure that the District Court applied on the basis of what it found to be clear and convincing evidence that Fuller had bartered drugs in exchange for firearms. Id. at 6-7.

Third and finally, Fuller asserts that the District Court erred in failing to provide an adequate statement — both on the record at sentencing and in its written order of judgment — explaining the upward departures that it applied in arriving at Fuller's sentence. See Appellant's Br. at 12, 14.

I. Booker Error

In United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the mandatory nature of the U.S. Sentencing Guidelines violated the Sixth Amendment. Id. at 749-50. In its remedy opinion in Booker, the Court concluded that the Guidelines are now advisory, id. at 757, and that the proper standard of review for sentences is "reasonableness," see id. at 765-66. In United States v. Crosby, 397 F.3d 103 (2d Cir.2005), we explained that pre-Booker sentences, regardless of their length, would "not be found reasonable" if (1) "a sentencing judge committed a procedural error by selecting a sentence in violation of applicable [post-Booker] law" and (2) "that error is not harmless and is properly preserved." Id. at 114. Regarding the first prong of our post-Booker inquiry — whether a district court committed procedural error — we held that "a sentencing judge would commit a statutory error in violation of [18 U.S.C.] section 3553(a) if the judge failed to `consider' the applicable Guidelines range ... as well as other factors listed in section 3553(a), and instead simply selected what the judge deemed an appropriate sentence without such required consideration." Crosby, 397 F.3d at 115 (emphasis added).

The Government asserts that because the District Court "correctly anticipated Booker's holding that the Guidelines were advisory, and imposed a discretionary, non-Guidelines sentence," the District Court "committed no error at sentencing." Appellee's Supplemental Letter Br. of May 27, 2005, at 1. We disagree. When considering the possibility of non-binding Guidelines, the District Court stated:

[M]y position on the Guidelines is that ... either they exist in their entirety ... or they don't exist at all; in which case, we revert to a pre-1986 sentencing scheme under which a judge, in...