U.S. v. Simpson

• Decision Date: 13 December 2005
• Docket Number: No. 04-3129.,04-3129.
• Citation: 430 F.3d 1177
• Parties: UNITED STATES of America, Appellee, v. Joseph B. SIMPSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

430 F.3d 1177

UNITED STATES of America, Appellee, v. Joseph B. SIMPSON, Appellant.

No. 04-3129.

United States Court of Appeals, District of Columbia Circuit.

Argued September 16, 2005.

Decided December 13, 2005.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 04cr00096-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee and Mary M. Petras, Assistant Federal Public Defenders, entered appearances.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the time the brief was filed, and Roy W. McLeese, III, Catharine A. Hartzenbusch, and Mary B. McCord, Assistant U.S. Attorneys.

Before: GARLAND, Circuit Judge, and SILBERMAN and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Senior Circuit Judge SILBERMAN.

GARLAND, Circuit Judge.

Joseph B. Simpson, a citizen of Jamaica, pled guilty to re-entering the United States unlawfully after having been deported following conviction for an aggravated felony. Due to uncertainty regarding the continued validity of the United States Sentencing Guidelines in the months after the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the district court imposed a 46-month prison term under two separate rationales. The court first sentenced Simpson by applying the Guidelines as mandatory; it then sentenced him as it would in its discretion, treating the Guidelines as advisory only. Simpson now appeals, seeking a remand to the district court for re-sentencing in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that the alternative sentencing methodology employed by the district court was consistent with the Supreme Court's subsequent decision in Booker and that Simpson's sentence must therefore be affirmed.

I

On October 6, 2000, Simpson was convicted in federal court in Virginia of conspiring to possess with intent to distribute 100 kilograms or more of marijuana. As a result of that conviction, Simpson was deported from the United States on October 23, 2003. See 8 U.S.C. § 1227(a)(2)(A)(i)(II). Two months later, using a false name, Simpson re-entered the United States near Port Everglades, Florida. One month after re-entering the country, Simpson was arrested in the District of Columbia for threatening to kill his wife with a kitchen knife. Fingerprints and photographs revealed Simpson's true identity, and on February 27, 2004, he was indicted on one count of re-entry by an alien deported following conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).

Simpson signed an agreement to plead guilty to the indictment. The parties agreed that Simpson's base offense level under the Sentencing Guidelines was 8, and that his offense level should be enhanced to 24 "because the defendant was previously deported after a conviction for a drug trafficking offense for which the sentence imposed was greater than 13 months." Plea Agreement 2; see U.S.S.G. § 2L1.2(b)(1)(A). The parties further agreed that the offense level should be reduced by 3 levels to 21, due to Simpson's acceptance of responsibility. See U.S.S.G. § 3E1.1. The plea agreement did not include a stipulation regarding Simpson's criminal history category. The district court accepted the plea at a hearing on June 10, 2004, and it scheduled sentencing for August 25.¹

Following entry of the plea, the U.S. Probation Office prepared a Presentence Report (PSR) that accepted the parties' calculation of Simpson's offense level. The PSR also placed Simpson in criminal history category III. That calculation was based on the PSR's finding of a total of 5 criminal history points: 3 points for Simpson's marijuana conspiracy conviction and sentence, see U.S.S.G. § 4A1.1(a), and 2 additional points for committing the re-entry offense while still under sentence (supervised release) for the marijuana conviction, see id. § 4A1.1(d). At the subsequent sentencing hearing, the district court agreed with the PSR's offense level calculation, but added another criminal history point because the re-entry offense was committed less than two years after Simpson's release from imprisonment. See id. § 4A1.1(e).² The resulting 6 criminal history points did not change Simpson's criminal history category, which remained at III. See U.S.S.G. Ch. 5, Pt. A. The combination of offense level 21 and criminal history category III yielded a Guidelines sentencing range of 46-57 months' imprisonment. See id.

In the interim between Simpson's plea and sentencing, the Supreme Court decided the Blakely case, in which it invalidated a Washington state determinate sentencing regime similar to the U.S. Sentencing Guidelines. The Court held that a sentencing court violates the Sixth Amendment when it imposes a sentence higher than the statutory maximum sentence it "may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303, 124 S.Ct. 2531. Relying on Blakely, Simpson's counsel challenged the calculation of her client's criminal history category as a violation of the Sixth Amendment, arguing that the category had been assigned on the basis of facts Simpson had not admitted. Def.'s Objections to PSR 2. In particular, she argued that, even if Simpson had admitted the facts necessary to assign him 3 points for the marijuana conspiracy conviction, those 3 points would only put him in category II, which would yield a lower sentencing range (41-51 months). See Appellant's Br. 4. The calculation that raised the criminal history category to III, she contended, required the court to find additional facts — that Simpson was on supervised release at the time of his unlawful re-entry and/or that he had committed that offense less than two years after release from imprisonment. Simpson's counsel asserted that he had not admitted those facts, and that Blakely therefore barred the court from using them to sentence him.³ Accordingly, she asked the sentencing judge to "just use your discretion." Sentencing Hr'g Tr. 8 (August 25, 2004).

At the August 25 sentencing hearing, the district court advised the parties that, in light of Blakely, it would give Simpson "alternative sentences": one as if the Guidelines were "controlling," and one as if the Guidelines were "not controlling" but could be looked to "for whatever assistance... [the court] might be able to get from them." Id. at 25. With respect to the latter, the court invited the parties to give it "the assistance that you would like to give . . . with respect to what sentence should be imposed." Id. at 26. Simpson's counsel objected that the court should not announce an alternative sentence that would be "automatically imposed" if the Court of Appeals were to determine that the Guidelines sentence was unconstitutional, because "it doesn't give the defendant a chance to respond to whatever it is the Court says was wrong with the first sentence." Id. at 27. Counsel then went on to cite circumstances that she thought justified sentencing Simpson "at the lowest level of whatever guideline range, should the court impose a guideline range, or if the Court views the guidelines only as guidelines and not mandatory, . . . [to] a sentence less than what the guidelines would otherwise dictate." Id.

The district court proceeded to sentence Simpson under each of the two approaches. Turning first to the Guidelines, the court set forth the calculations outlined above, concluding that Simpson's offense level was 21, that his criminal history category was III, and that the resulting Guidelines sentencing range was 46-57 months. The court then sentenced Simpson to the bottom of that range, imposing a sentence of 46 months' imprisonment, followed by two years of supervised release. Id. at 46-48.

The court next addressed the appropriate sentence in the event the Guidelines were not controlling:

I would take into account and do take into account the seriousness of this offense, that it was a conscious, intentional decision by the defendant following a conviction for an aggravated felony offense and deportation from the United States and that the Court is not confident that Mr. Simpson would not choose to return to the United States illegally in the future as well, and that the guidelines, using them only as a reference point, would suggest that an appropriate sentence for this offense should be in the range of 46 to 57 months based on a particular criminal history category.

I find in my discretion, without the guidelines, that the appropriate sentence would be at 46 months, that that is a sentence that addresses the interests of the criminal justice system and addresses the interests and sentencing objectives of punishment and deterrence and is the sentence that the Court imposes in its discretion, given all the facts and circumstances relevant here.

Id. at 49.

Simpson noted an appeal on September 2, 2004. On January 12, 2005, the Supreme Court issued its opinion in United States v. Booker, which held that Blakely applied to the U.S. Sentencing Guidelines and that the mandatory imposition of enhanced sentences under the Guidelines violated the Sixth Amendment. 125 S.Ct. at 746. In light of this holding, the Court invalidated two statutory provisions that had the effect of making the Guidelines mandatory. Id. We now consider Simpson's appeal in the wake of Booker.

II

We begin with a discussion of Booker and of the legal doctrines governing appellate review of sentencing error. That discussion will guide the analysis in the balance of this opinion.

A

The Supreme...