U.S. v. Schlifer, 04-3398.

• Decision Date: 07 April 2005
• Docket Number: No. 04-3398.,04-3398.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James T. SCHLIFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

403 F.3d 849

UNITED STATES of America, Plaintiff-Appellee, v. James T. SCHLIFER, Defendant-Appellant.

No. 04-3398.

United States Court of Appeals, Seventh Circuit.

Argued March 1, 2005.

Decided April 7, 2005.

Paul W. Connell (argued), Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

T. Christopher Kelly (argued), Kelly & Habermehl, Madison, WI, for Defendant-Appellant.

Before KANNE, EVANS and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

James Schlifer appeals his sentence of 120 months on the ground that the district court violated the Sixth Amendment by sentencing him as a career offender without presenting the facts underlying his prior convictions to a jury. He also argues that in light of the Supreme Court's decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court erred in applying the guidelines under the prior mandatory sentencing scheme. Although Schlifer's Sixth Amendment argument lacks merit, we vacate his sentence and remand for resentencing because the district court erred under Booker by sentencing Schlifer under a mandatory guidelines system, and the government has not demonstrated that the error was harmless.

I. BACKGROUND

In June 2004 Schlifer pleaded guilty to one count of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Under the November 2003 sentencing guidelines, Schlifer's crime ordinarily would have carried a base offense level of 30 based on evidence that the quantity of methamphetamine was at least 360 grams. U.S.S.G. § 2D1.1(c)(5). However, the probation officer who prepared the presentence investigation report (PSR) recommended that the court sentence Schlifer as a career offender because among his prior crimes were two unrelated convictions for aggravated assault. See U.S.S.G. § 4B1.1. Under the career offender guideline, Schlifer's base offense level increased to 32 and his criminal history category was VI regardless. U.S.S.G. § 4B1.1. The court then deducted three levels for acceptance of responsibility. See U.S.S.G. § 3E1.1. This resulted in a total offense level of 29, which, combined with Schlifer's criminal history category of VI, yielded a sentencing range of 151 to 188 months.

In response to the PSR and again at his sentencing hearing, Schlifer objected to being sentenced as a career offender. He argued that in order to classify him as a career offender the district court was required to find facts beyond the mere existence of two prior convictions. Specifically, he argued that the district court had to determine whether his prior convictions were for crimes of violence and whether the two crimes were unrelated. See U.S.S.G. §§ 4B1.2(c), 4A1.2(a) & cmt. n. 3. These determinations, Schlifer argued, required the district court to go beyond the "fact of a prior conviction" and thus exceeded the judicial factfinding exception for recidivism recognized in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and preserved in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Accordingly, Schlifer contended that under Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 375 F.3d 508 (7th Cir.2004), these facts must be admitted or proven beyond a reasonable doubt before they could be used to increase his guideline range. The district court rejected Schlifer's argument, concluding that Blakely and this court's opinion in Booker do not apply to prior convictions.

The district court denied Schlifer's motion to depart under U.S.S.G. § 5K2.0, rejecting his argument that his offense primarily involved manufacturing methamphetamine for personal use and thus fell outside of the "heartland" of drug manufacturing and distribution cases contemplated by the guidelines. The court, however, granted the government's motion for a downward departure based on Schlifer's substantial assistance. See U.S.S.G. § 5K1.1. The court calculated a new effective range of 120 to 150 months by departing the equivalent of three levels, and sentenced Schlifer to 120 months' imprisonment.

II. ANALYSIS

Schlifer argues in his opening brief that the district court impermissibly sentenced him as a career offender without submitting the issue to a jury. After that brief was filed, and after his case had already been set for oral argument, the Supreme Court decided Booker. We granted Schlifer's motion to file a supplemental brief in light of Booker. Schlifer now argues in addition that his sentence is erroneous because the district court imposed it under the mandatory guidelines system that existed prior to Booker. He thus contends that his sentence should be vacated and his case remanded for resentencing in light of the Court's decision that the guidelines are advisory.

A defendant is a career offender under U.S.S.G. § 4B1.1 if he commits a felony drug offense after the age of 18 and has at least two prior felony convictions for crimes of violence or drug trafficking offenses. The prior offenses must be unrelated. Schlifer argues in his opening brief that these determinations require a sentencing court to find facts outside the judgment of conviction and thus entail impermissible factfinding by the court.

Prior to the Supreme Court's decision in Booker, Schlifer's appeal would have been frivolous. Neither the Supreme Court's decision in Blakely nor this court's opinion in Booker disturbed the principle that the "fact of a prior conviction" falls outside the Apprendi rule that facts increasing a sentence beyond the otherwise applicable statutory maximum must be proved to a jury beyond a reasonable doubt. See United States v. Pittman, 388 F.3d 1104, 1109 (7th Cir.2004). Thus in Pittman this court held that imposing a career offender sentence under § 4B1.1 without resort to a jury or proof beyond a reasonable doubt of the prior convictions did not violate Blakely as interpreted by this court in Booker. Id. Pittman has not been affected by the Supreme Court's decision in Booker because the Court again preserved the Almendarez-Torres exception for prior convictions. See Booker, ___ U.S. at ___, 125 S.Ct. at 758. And, although the Supreme Court recently called its future into question, the Almendarez-Torres exception for prior convictions still stands. Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254, ___ L.Ed.2d ___, 2005 WL 516494 (U.S. March 7, 2005).

Schlifer attempts to distinguish his case by arguing that the district court's conclusion that he is a career offender entailed finding facts outside the "fact of a prior conviction," namely, whether his prior convictions are for crimes of violence and whether they are "related." But we have already rejected a similar argument in United States v. Morris, 293 F.3d 1010 (7th Cir.2002). In Morris, a defendant who was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), argued that his sentence was unconstitutional under Apprendi because the government did not prove beyond a reasonable doubt that his prior convictions had been committed on separate occasions as required by the statute. We rejected the argument, noting that there was no precedent for "parsing out the recidivism inquiry." Id. at 1012. Likewise, Schlifer cites no authority in support of his argument that, although "the fact of a prior conviction" may be found by a judge by the preponderance of the evidence, the factors that bear on that determination must be proved beyond a reasonable doubt. In this case, the district court did not engage in impermissible factfinding with respect to its determination that Schlifer was a career offender, and Schlifer's sentence accordingly does not violate the Sixth Amendment.

In his supplemental brief, however, Schlifer raises the nonfrivolous argument that the Supreme Court's remedial opinion in Booker invalidates his sentence even in the absence of a Sixth Amendment violation. In Justice Stevens's opinion in Booker, the Court extended its holding in Blakely to the federal sentencing guidelines and held that the Sixth Amendment right to trial by jury is violated where a defendant's guidelines range is increased based on facts (other than a prior conviction) found by the judge without a jury or using a preponderance standard. Booker, ___ U.S. at ___, 125 S.Ct. at 756. Second, the Court, in an opinion authored by Justice Breyer, severed from the authorizing statute the provision that called for the mandatory application of the Guidelines and the provision that established the appellate standard of review. Id. at 765. The Court thus crafted a system under which the district courts are obligated to consider the guidelines but are not bound by them. Id. at 767.

The remedial portion of the Court's decision, which invalidates the mandatory application of the guidelines and instead requires the courts to consult them in an advisory fashion, must be applied to all cases pending on direct review, even in the absence of a Sixth Amendment violation. See id. at 765. Thus in every pending appeal where the district court sentenced a defendant under the now-defunct mandatory guidelines scheme, error will have been committed. See id. at 768,¹ 769 (holding that parties in respondent Fanfan's case "may seek resentencing under the system set forth in [Booker]" though "Fanfan's sentence d[id] not violate the Sixth Amendment"); United States v. Paladino, Nos. 03-2296 et al., 401 F.3d 471, 2005 WL 435430, at *7 (7th Cir. Feb.25, 2005) (finding Booker error where a portion of defendant Velleff's sentence "was based on mandatory provisions of the sentencing guidelines"); see also, United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir.2005); United States v. Hughes, 401 F.3d 540, 2005 WL 628224, at *4 (4th Cir. Mar.16, 2005); United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir.2005).

The existence of error,...