* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### August 29, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 04-3415 AGNES REED, Defendant-Appellant. (D.C. No. 04-CR-20041-01-JWL) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Agnes Reed pled guilty to, and was convicted of, on e count of distributing methamphetamine in violation of 21 U.S.C. §§ 841(a) (1), 841(b)(1)(c), and 860(a), and 18 U.S.C. § 2. She appeals her forty-s ix month sentence in light of United States v. Booker , ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (200 5). Exercising jurisdiction pursuant to 28 U.S.C. § 129 1, we conclude that the1 After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir . R. 34.1.9(G). The case is therefore ordered submitted without oral argument. 2 government has not met its burden of proving that the district court’s Booker error was harmless and we REMAND for resentencing. 1
I. After a series of seven controlled buys in 2003 con ducted by a Kansas Bureau of Investigation Agent and a confidential in formant (CI), Mrs. Reed was charged in an Indictment with eight counts of distr ibuting methamphetamine within 1,000 feet of a public secondary school, in violation of 21 U.S.C. §§ 841(a)(1) and 860(a) and 18 U.S.C. § 2. Pursuant t o a plea agreement with the government, Mrs. Reed pled guilty to Count 1 of the Indictment on July 6, 2004. At her plea hearing Mrs. Reed admitted that she was accountable for 131.06 grams of methamphetamine — the amount sold to the A gent and CI, plus the amount subsequently recovered from a search of her residence. The presentence investigation report (PSR), however , determined that in addition to the quantities of methamphetamine she a dmitted to in her plea, Mrs. Reed was responsible for 1,190.7 grams of methamphe tamine that she allegedly sold to the CI from 1999 through 2003. The PSR con cluded that with the additional amount of methamphetamine Mrs. Reed’s to tal offense level was 292 We note that without the district court’s enhance ments based upon the

additional 1,190.7 grams of methamphetamine, Mrs. R eed’s guideline range after applying the § 5K1.1 departure would have been 24–3 0 months. 3 and her criminal history category was I, resulting in a range of imprisonment of 87–108 months. Mrs. Reed objected to the PSR’s inc lusion of the additional 1,190.7 grams, citing the Supreme Court’s decision in Blakely v Washington , 542 U.S. 296 (2004), and noting that without the additi onal quantities the resulting range of imprisonment would have been 46–57 months. ROA, Vol. 2 at 22–23. At sentencing, Mrs. Reed again raised Blakelyarguments in objecting to the enhancements. She also moved for downward departures based upon her age, health and the sentencing disparity between her pro spective sentence and the sentences imposed on her co-defendants prosecuted i n state court, stating that each factor put her case outside of the “heartland” of the guideline range for similar cases. Pursuant to the plea agreement, the government also filed a motion for a six-level downward departure for substantial assistance to authorities under United States Sentencing Guidelines (U.S.S.G.) § 5K 1.1, and requested a sentence at the low end of the guideline range. The resulti ng guideline range after the inclusion of the § 5K1.1 departure was 46–57 months

. 2 The district court rejected Mrs. Reed’s Blakelychallenge, explaining that “until the Supreme Court tells us to the contrary, I am going to continue to apply th e guidelines.” ROA, Vol. I, Doc. 46 at 4. The district court then applied the PSR’s enhancements and denied3 We express no opinion on the validity of the government’s concession. 4 Mrs. Reed’s motion for downward departures. The di strict court did grant the government’s § 5K1.1 motion, finding it “generous” but “appropriate” for the circumstances surrounding her assistance. Id. at 35. It then sentenced Mrs. Reed at the bottom of the guideline range to a term of i mprisonment of 46 months, a term of supervised release of three years and a $10 0 special assessment. While Mrs. Reed’s appeal was pending, the Supreme C ourt issued its decision in Booker , which held that Blakelyapplies to the Sentencing Guidelines so that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the fa cts established by plea of guilty or a jury verdict must be admitted by the de fendant or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. Mrs . Reed now argues that her sentence should be reversed and remanded in light o f Bookerbecause she did not admit facts regarding relevant conduct used to incr ease her sentence.
II. Mrs. Reed contends, and the government concedes, th at the district court committed constitutional Bookererror when it increased her offense level by four levels based on the factual finding that she had so ld an additional 1,190.7 grams of methamphetamine to the CI from 1999 through 2003

. 3 The parties also agree that Mrs. Reed properly preserved her Bookerclaim by timely raising her Blakely5

objections in the district court. The government c ontends, however, that the error was harmless. Fed.R.Crim.P. 52(a) provides that “[a]ny error, def ect, irregularity, or variance that does not affect substantial rights mu st be disregarded.” In the context of a misapplication of the guidelines, “the Supreme Court held that ‘once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.’” Unite d States v. Labastida-Segura , 396 F.3d 1140, 1142–43 (10th Cir. 2005) (quoting Wi lliams v. United States , 503 U.S. 193, 203 (1992)). Where the error was preserv ed in the district court, the government bears the burden of demonstrating that e rror was harmless. United States v. Riccardi , 405 F.3d 852, 875 (10th Cir. 2005). Furthermore, as the government points out in its brief, because the err or is of constitutional dimension, the government must establish that the e rror was harmless beyond a reasonable doubt. See Chapman v. California , 386 U.S. 18, 24 (1967) (“[B]efore a federal constitutional error can be held harmless , the court must be able to declare a belief that it was harmless beyond a reas onable doubt.”). The government argues that the district court’s err or was harmless because the district court considered and rejected Mrs. Ree d’s departure motion based on6

her age, health and sentencing disparity. The gove rnment relies on a particular passage, which it argues shows that the district co urt acknowledged that it had discretion to depart downward, but refused to do so : I recognize the Court has discretion under certain circumstances to depart downward, and since this is not a situation which I fail to recognize that discretion, but I do not believe that this case is outside the heartland other than — what is truly anunusual fact that the defendant was some 64 years on age to 68 y ears of age during the time period that this activity took plac e. . . . [T]he age of the defendant here, although unusual, is not in my personal view so extreme and different as to take this outside wh at I would consider the heartland. . . . [T]he health of a def endant is not of such a degree that it is a factor that the Court wo uld consider beyond the heartland. ROA, Vol. I, Doc. 46 at 35–37. The district court also went on to state that Mrs. Reed’s complaint of sentencing disparity was “not s omething which leads me to believe that if there is disparity, it is outside t he heartland . . . it is not something that the drafters of the Guidelines didn’t think itmight happen.” Id. at 39. According to the government, these statements show that the district court would not reduce Mrs. Reed’s sentence on remand, thus ren dering the error harmless. The district court’s repeated reference to the “hea rtland,” however, controverts the government’s contention that it has met its bur den of demonstrating that the error was harmless beyond a reasonable doubt. Before Booker , departures not specifically enumerated in the gui delines were permissible only if they fell within the excep tion in § 3553(b), which stated7

that the district court “shall impose a sentence” w ithin the guidelines range unless “mitigating circumstances” existed that were “not a dequately taken into consideration by the Sentencing Commission in formu lating the guidelines.” 18 U.S.C. § 3553(b). The district court could conside r only the “sentencing guidelines, policy statements, and official comment ary of the Sentencing Commission” in determining whether the Commission a dequately accounted for a particular circumstance. Id. ; see also U.S.S.G. § 5K2.0(a)(1). As the Supreme Court explained, a district court could depart with out abusing its discretion if the case was “unusual enough for it to fall outside the heartland of cases in the Guideline” at issue, based on whether the Sentencin g Commission had forbidden, encouraged, or discouraged consideration of certainrelevant facts. Koon v. United States , 518 U.S. 81, 98–100 (1996). The Commission, howe ver, had made clear that “such cases w[ould] be extremely rare.” U.S.S.G. § 5K2.0 comment. Accordingly, we would reverse a district court’s do wnward departure as an abuse of discretion if we concluded that the circumstance s were not so “extraordinary” as to place the case outside the “heartland.” See e.g. , United States v. Reyes-Rodriguez , 344 F.3d 1071, 1075–76 (10th Cir. 2003). Moreove r, our review of downward departures afforded district cou rts little deference with the enactment of the PROTECT Act, Pub.L. 108-21 (2003), in effect at the time of Mrs. Reed’s sentencing, which raised the standard o f review in sentencing8

departure cases from a “unitary abuse of discretionstandard” to application of a de novo standard of review. United States v. Jones , 332 F.3d 1294, 1299 (10th Cir.2003). Booker , however, excised § 3553(b) and its narrow prescri ption for when departures are warranted, along with 18 U.S.C. § 37 42(e), as amended by the
PROTECT Act. See Booker , 125 S.Ct. at 764. District courts now “have more discretion to tailor sentences to individual circum stances of a defendant,” looking to such factors articulated in 18 U.S.C. § 3553(a), which “have a new vitality” after Booker . United States v. Trujillo-Terrazas , 405 F.3d 814, 819 (10th Cir. 2005). Thus, the district court’s denial of Mrs. R eed’s motion for a downward departure because her health, age and disparate sentence did not distinguish her case from the “heartland” of cases covered by the g uidelines is not only unsurprising given the legal landscape of the time, but it sheds no light on whether it might have granted the very same motion had it known that Booker establishes § 3553(a) as a primary point of referen ce and effectively allows greater latitude in making departure decisions. As we noted in Labastida-Segura , Here, where [the sentence imposed] was already at the bottom of the guidelines range, to say that the district court would have imposed the same sentence given the new legal lands cape (even after consulting the Sentencing Guidelines in an ad visory capacity) places us in the zone of speculation and conjecture — we simply do not know what the district court would have done after hearing from the parties. Though an appellate court may jud ge whether a district court exercised its discretion (and whethe r it abused that9

discretion), it cannot exercise the district court’ s discretion. 396 F.3d at 1143. This case presents effectively t he same uncertainties presented by Labastida-Segura

. As a final matter, we conclude this case is disting uishable from our recent decision in United States v. Ollson , 413 F.3d 1119 (10th Cir. 2005). In Ollson , we held that a non-constitutional Bookererror (i.e., the application of the Sentencing Guidelines in a mandatory fashion) was h armless because the district court in that case granted the government’s motion to reduce the defendant’s sentence under U.S.S.G. § 5K1.1 for his substantial assistance in an investigation. In doing so, we noted that the district court had d iscretion under § 5K1.1 to depart to the degree it found appropriate, regardless of the specific recommendation of the government. Id. at 1121. We further emphasized there was “[n]othi ng in the record [to] overcome[] the presumption that the [di strict] court was aware of its discretion.” Id. Here, in contrast, the record on appeal indicates that the district court believed its discretion to depart under § 5K1 .1 was more limited. In particular, the district court stated: “I don’t thi nk that the 5K1.1 motion is simply opening the door to the judge and then saying, well , now I have the opportunity to impose whatever sentence I feel is appropriate.” R OA, Vol. I, Doc. 46, at 34. In sum, we conclude that the government has failed to show that the district court’s error was harmless beyond a reasonable doub t.10 III. Accordingly, we REMAND the defendant’s sentence to the district court with direction to VACATE defendant’s sentence and r esentence in light of Booker

. Entered for the Court
Mary Beck Briscoe Circuit Judge