U.S. v. Lee, 03-4239.

• Decision Date: 25 February 2005
• Docket Number: No. 03-4239.,03-4239.
• Citation: 399 F.3d 864
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcus LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

399 F.3d 864

UNITED STATES of America, Plaintiff-Appellee, v. Marcus LEE, Defendant-Appellant.

No. 03-4239.

United States Court of Appeals, Seventh Circuit.

Argued February 16, 2005.

Decided February 25, 2005.

Michael Gurland, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Gerardo S. Gutierrez, Chicago, IL, for Defendant-Appellant.

Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge.

A jury convicted Marcus Lee of possessing a firearm despite a previous felony conviction. 18 U.S.C. § 922(g)(1). His sentence was 120 months' imprisonment; the judge expressed frustration at his inability to impose a higher one, which the statutory maximum forbade. Lee challenges the conviction on the ground that the officer who made the arrest did not find the gun, which was buried deep in a pocket of his cargo pants. Still, the gun was found, and uncertainty about just which officer found it and when does not preclude a reasonable jury from finding guilt beyond a reasonable doubt.

Nor does it matter that the local jail gave the cargo pants to charity after Lee failed to claim them. He says that the prosecutor's inability to produce the pants at trial was a "Brady violation," which is nonsense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), deals with the concealment of exculpatory evidence unknown to the defendant. Lee was aware of his own pants. Recast as a complaint about spoliation of evidence, it fares no better. Destruction (or donation) of evidence raises problems only when the evidence was made scarce in order to undermine a valid defense. See Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). No such purpose has been alleged or is plausible. None of Lee's other complaints about the conduct of trial requires discussion.

Because the sentence is at the statutory maximum, and the range under the Sentencing Guidelines is higher (the judge calculated 168 to 210 months), Lee does not contend that his sentence is improper under the Guidelines or any federal statute. But he does contend, relying on United States v. Booker, ___ U.S. ___ 125 S.Ct. 738, ___ L.Ed.2d ___ (2005), that the district judge violated the Sixth Amendment when making the findings that established the presumptive sentence. The 168 to 210 month range depended not only on the events that the jury necessarily found beyond a reasonable doubt, plus Lee's older convictions (which need not be passed on by another jury, see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)), but also the district judge's conclusions (on the preponderance standard) that Lee had obstructed justice by committing perjury at a pretrial suppression hearing, and that he had possessed the gun while committing two additional offenses (purchasing drugs and wearing body armor, which felons cannot do). Lee did not make any sixth amendment argument in the district court, however, so our review is for plain error. Booker, ___ U.S. at ___, 125 S.Ct. at 769; Fed.R.Crim.P. 52(b).

In order to show plain error the defendant must establish, among other things, that the error "affected substantial rights" — which is to say that it made the defendant worse off. See, e.g., United States v. Olano, 507 U.S. 725, 734-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); Jones v. United States, 527 U.S. 373, 394-95, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); United States v. Cotton, 535 U.S. 625, 631-33, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Dominguez Benitez, ___ U.S. ___, ___-___, 124 S.Ct. 2333, 2339-40, 159 L.Ed.2d 157 (2004). As our opinion in United States v. Paladino, 2005 WL 435430 (7th Cir. 2005), also issued today, explains, ascertaining prejudice can be difficult after Booker, for the upshot of that decision is to increase district judges' sentencing discretion rather than reallocate any issue from judge to jury, change the burden of persuasion, or limit sentences to those that can be supported solely by the facts found by the jury. How can an appellate court know what effect extra leeway would have had, when the district court did not recognize that it had any? To avoid aimless speculation, we hold in Paladino, uncertainty should be resolved by asking the district judge.

As Paladino itself shows, however, a remand is necessary only when uncertainty otherwise would leave this court in a fog about what the district judge would have done with additional discretion. See also United States v. Stockheimer, 157 F.3d 1082, 1091-92 (7th Cir.1998). One of the defendants in Paladino received a sentence at the statutory minimum. Nothing in Booker gives a judge any discretion to disregard a mandatory minimum, so there was no need to speculate about prejudice. We affirmed that sentence instead of remanding to obtain the district judge's views.

Other circumstances likewise may intimate that a district court's mistaken belief about the extent of its discretion to reduce the penalty did not work to a defendant's disadvantage, and therefore could not have undercut the defendant's substantial rights. One is when the district court states on the record that, if it had more leeway, it would have imposed a higher sentence. A second is when the court departs downward from the Guidelines, imposing a sentence below the calculated range. Such a departure may imply that the Guidelines were not a constraint...