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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2005 Decided February 7, 2006

No. 04-3170

UNITED STATES OF AMERICA,

APPELLEE

v.

LEONARD GILLESPIE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00494)

Michael F. Williams, appointed by the court, argued the

cause and filed the briefs for appellant. With him on the brief

was Barbara Mack Harding.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief was Kenneth L.

Wainstein, U.S. Attorney. Roy W. McLeese, III, Assistant U.S.

Attorney, entered an appearance.
2

Before: SENTELLE, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Leonard Gillespie appeals his

conviction of drug and firearms offenses on the ground that his

sentence violates the Fifth and Sixth Amendments of the United

States Constitution. Because the claimed violations were

rendered harmless beyond a reasonable doubt by the district

court’s announcement of a discretionary “alternative sentence”

identical to that which it imposed under the United States

Sentencing Guidelines, we affirm.

I.

Upon executing a search warrant for an apartment,

Metropolitan Police Department officers encountered Gillespie,

who confirmed he lived in the apartment. After further

questioning, Gillespie guided them to the bedroom, where the

officers recovered approximately one gram of cocaine base, two

loaded handguns, several loose rounds of ammunition, and

numerous items of drug paraphernalia. The officers seized

approximately 1.7 grams of cocaine base and $419 from

Gillespie’s person. Gillespie admitted the guns were his.

Subsequent analysis by the Drug Enforcement Administration

determined that the officers had recovered a total of 2.24 grams

of cocaine base from the apartment. 

Gillespie was indicted on one count of unlawful possession

with intent to distribute “a detectable amount” of a controlled

substance, 21 U.S.C. § 841(a)(1), (b)(1)(C); one count of

possession of a firearm during a drug trafficking offense, 18

U.S.C. § 924(c)(1); and three counts of possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1). The parties

stipulated at trial that the firearms and ammunition met the
3

statutory definitions of those terms, that they were manufactured

outside of the District of Columbia, and that Gillespie had been

previously convicted of a felony. Over defense objection, the

district court adopted the prosecutor’s suggestion that the jury

verdict form provide space for the jury to state the quantity of

drugs when it rendered its verdict. The jury found Gillespie

guilty on the possession-with-intent-to-distribute and felon-inpossession counts and stated on the verdict form that the

quantity of cocaine base was 2.24 grams.

Under 21 U.S.C. § 841(b)(1)(C), Gillespie faced a

maximum sentence of twenty years’ imprisonment on the drug

possession count. The district court found Gillespie’s offense

level under the Sentencing Guidelines, which had yet to be

rendered advisory by United States v. Booker, 125 S. Ct. 738

(2005), to be twenty-two: a base offense level of twenty, for

possessing “[a]t least 2g but less than 3g of cocaine base,”

U.S.S.G. § 2D1.1(c)(10), and a two-level enhancement because

“a dangerous weapon (including a firearm) was possessed,”

U.S.S.G. § 2.D1.1(b)(1). This corresponded to a sentence of

forty-one to fifty-one months. U.S.S.G. Ch. 5, Pt. A (sentencing

table). At the sentencing hearing, Gillespie objected to the

calculated offense level on two grounds. He argued that because

the indictment failed to state a quantity of drugs his offense level

should have corresponded to the smallest amount of cocaine

base recognized by the Guidelines, see U.S.S.G. § 2D1.1(c)(14)

(“less than 250 mg of cocaine base”). Gillespie also objected to

the two-level increase to his offense level for possession of a

dangerous weapon during a drug trafficking offense on the

ground that the facts underlying this increase were not found by

the jury and the jury had acquitted him on that count.

Gillespie’s calculation yielded a total offense level of twelve,

which carried a sentence of ten to sixteen months of

imprisonment, U.S.S.G. Ch. 5, Pt. A (sentencing table).

Gillespie claimed that a downward departure was warranted
4

because his prior felony conviction for forgery of a postal

certificate was a non-violent crime that had been committed

nearly forty years ago and because he was undergoing drug

rehabilitation.

The district court sentenced Gillespie to forty-one months’

imprisonment. Because of the uncertain status of the Sentencing

Guidelines following Blakely v. Washington, 542 U.S. 296

(2004), the district court announced an “alternative sentence” of

forty-one months that it would impose were the mandatory

Guidelines sentencing regime held unconstitutional by the

Supreme Court. 

II.

Gillespie contends that his Fifth Amendment rights were

violated when the district court imposed a Guidelines sentence

that was enhanced based on a drug quantity not set forth in the

indictment, and that his Sixth Amendment rights were violated

when the district court enhanced his sentence for possession of

a firearm in the face of his acquittal of possessing a firearm

during a drug trafficking offense. Both contentions are resolved

under this court’s precedent holding that although the district

court may have erred in sentencing under a mandatory

Guidelines regime, the error does not necessarily require

resentencing where the district court has announced an identical

“alternative sentence.” 

In Booker, 125 S. Ct. at 746, the Supreme Court held that

the mandatory imposition of enhanced sentences under the

Sentencing Guidelines violated the Sixth Amendment and

accordingly invalidated two statutory provisions that made the

Guidelines mandatory. This court held in United States v.

Simpson, 430 F.3d 1177 (D.C. Cir. 2005), that a sentence

imposed when the Guidelines were still mandatory was free of
5

Booker error because the district court gave alternative

rationales for its sentencing decision. Id. at 1190. In addition to

a rationale for the sentence based on the mandatory Guideline

regime, the district court stated an alternative rationale based on

treating the Guidelines as advisory and taking into consideration

the sentencing factors enumerated in 18 U.S.C. § 3553(a). See

id. at 1184-86. Despite the Booker error in the first rationale for

the sentence it imposed, this court treated the district court’s

alternative, discretionary rationale as sufficient to support the

judgment. See id. at 1185; United States v. Godines, No. 04-

3158, 2006 WL 8466, at *2 (D.C. Cir., Jan. 3, 2006) (Rogers, J.,

concurring). 

On the other hand, in United States v. Ayers, 428 F.3d 312,

314-15 (D.C. Cir. 2005), the Government had conceded the

Booker error in the sentence imposed and the court inquired only

whether this error was rendered harmless by the district court’s

announcement of an identical alternative sentence. Id. Under

Ayers, the only question is whether the district court’s

announcement of an identical “alternative sentence” establishes

beyond a reasonable doubt that the Booker error in the

Guidelines sentence was harmless. See id. at 314. In Ayers, the

court stated that “the announcement of an identical alternative

sentence might establish harmless error.” Id. The court

presumed that a district court announcing an alternative nonGuidelines sentence “ordinarily . . . took into account all the

factors listed in § 3553(a) and accorded them the appropriate

significance.” Id. at 315. It remanded the case for resentencing,

however, because the district court had refused to consider

mitigating evidence, thus rebutting the presumption that the

district court had properly considered the § 3553(a) factors. See

id. 

Subsequently, in Godines, 2006 WL 8466 at *2, the court

applied Ayers where the district court had announced an
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alternative rationale. The court did not explain why Simpson did

not apply. But see id. at *2 (Rogers, J. concurring). Whatever

murkiness there may be in our precedent, it suffices here to

acknowledge that Godines is on point and that the error, if any,

in Gillespie’s sentence is rendered harmless under Ayers. See

Appellee’s Br. at 6. The district court sentenced Gillespie at the

low end of the Guidelines range after discussing the sentencing

factors in § 3553(a) in imposing the mandatory Guidelines

sentence. The district court discussed the nature and

circumstances of the offense as well as Gillespie’s personal

characteristics and history. These factors were noted in the

Presentence Report, which the district court also considered.

Gillespie, unlike the defendant in Ayers, did not proffer

mitigating evidence or seek any further exposition of the district

court’s reasons for the “alternative sentence.” Notably, in

denying Gillespie’s motion for a downward departure, the

district court remarked “[f]rankly, a sentence of 41 to 51 months

for the offense in [Gillespie’s] case . . . doesn’t strike me as

Draconian or as unjust as drug sentences often are.” Although

the district court did not revisit the § 3553(a) sentencing factors

upon announcing the “alternative sentence,” there is no evidence

to suggest that the district court declined to consider the

§3553(a) factors, as in Ayers. 

The fact that Gillespie’s announced “alternative sentence”

was the same as his Guidelines sentence does not detract from

the presumption in Ayers, 428 F.3d at 315. Booker left

undisturbed the pre-existing obligation of courts to consider the

§ 3553(a) sentencing factors. See 18 U.S.C. § 3582(a); Simpson,

430 F.3d at 1186. That a sentence derived from the § 3553(a)

factors is identical to a Guidelines sentence should not be

surprising; as the Government notes, the Guidelines were

intended to promote uniformity in the application of the §

3553(a) factors, not to distort them. See Appellee’s Br. 18 n.10.

Where, as here, the record shows the district court’s considered
7

1

 Booker did not purport to interpret the Fifth Amendment or

to affect prior precedents under it. See 125 S. Ct. at 754 & n.4. 

evaluation of § 3553(a) factors, the lack of specific findings

does not mean, this court has concluded, that the district court

failed to appreciate or consider the full range of § 3553(a)

factors in announcing an “alternative sentence.” See Simpson,

430 F.3d at 1186-87. Under the circumstances, the record

therefore indicates that Gillespie suffered no prejudice because

of the Booker error. See United States v. Coles, 403 F.3d 764,

769 (D.C. Cir. 2005). 

Because our existing Fifth Amendment precedents indicate

that Gillespie was properly indicted, Gillespie’s Fifth

Amendment challenge fails.1

 Gillespie was indicted and

convicted of violating § 841(a)(1) and (b)(1)(C), which together

criminalize the distribution of certain controlled substances

without regard to amount. See United States v. Pettigrew, 346

F.3d 1139, 1142 (D.C. Cir. 2003); United States v. Webb, 255

F.3d 890, 896, 898 (D.C. Cir. 2001). Section 841(b)(1)(C)

contains no threshold drug-quantity requirement and, therefore,

it was not error to indict him for possessing “a detectable

amount” but omit mention of the specific quantity. See United

States v. Lafayette, 337 F.3d 1043, 1048 (D.C. Cir. 2003); Webb,

255 F.3d at 900. The Government concedes that the Fifth

Amendment would preclude the imposition of a mandatory

Guidelines sentence for anything more than the minimum drug

amount where a specific drug amount was not set forth in the

indictment. See Appellee’s Br. 13 n.6; United States v. Johnson,

331 F.3d 962, 968 (D.C. Cir. 2003) (citing Apprendi v. New

Jersey, 530 U.S. 466, 476, 490 (2000)). However, any error in

Gillespie’s mandatory Guidelines sentence was rendered

harmless where, as here, the district court decided that under an

advisory Guidelines scheme it would have sentenced Gillespie

to an identical “alternative sentence.” 
8

Similarly, in an advisory Guidelines regime, no Sixth

Amendment violation arises from the district court’s

consideration at sentencing of Gillespie’s possession of a

firearm. Although he was acquitted of the charge of possessing

a firearm “in relation to” a drug trafficking offense, 18 U.S.C. §

924(c)(1), he was convicted beyond a reasonable doubt of

violating the felon-in-possession of a firearm statute, id. §

922(g).

Accordingly, we affirm the judgment of conviction.