United States Court of Appeals

Fifth Circuit



## FILED

July 21, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20669

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON PAUL WALTERS,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Jason Paul Walters (“Walters”) pleaded

guilty to being a felon in possession of a firearm in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“count 1”), and to using or

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A) ( “count 2”). He

appeals the 15-month sentence imposed on the basis of count 1

pursuant to United States v. Booker , 543 U.S. ---, 125 S. Ct. 738

(2005). Because we find that the error in this case was not

harmless, we VACATE Walters’s sentence and REMAND for resentencing.1 Altho ugh § 2K2.1(b)(5) normally triggers a 4-level increase

where the defe ndant used the firearm in connection with other

felonies, which would have increased Walters’s base offense level

to 18, the probation officer n oted that Application Note 2 to §

2K2.4 instructs that no adjustment und er § 2K2.1(b)(5) should be

applied because Walters’s conviction under count 2 required a

mandatory consecutive sentence. The probation officer did not

recommend any sentencing enhancements. After applying a 2-level

reduction for acceptance of responsibility under § 3E1.1, Walters’s

total offense level was 12 and his criminal history was III.

2 BACKGROUND

On December 15, 2002, W alters was charged by a two-count

indictment with possession of a firearm subsequent to a felony

conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

and with using or carrying a firearm during a nd in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

On February 4, 2004, without a written agreement, Walters entered

a plea of guilty to both counts of the indictment.

The presentence report (“PSR”) determined that the

imprisonment range under the Guidelines on count 1 was 15 to 21

months, see USSG § 2K2.1(a)(6), 1 and that the imprisonment range on

count 2 was the statutory mandatory consecutive sentence of 60

months, see 18 U.S.C. § 924(c)(1)(A)(i). Walters did not make

objec tions to the PSR, which the district court adopted at

sentencing on August 4, 2004. The district court commended Walters

for attending drug treatment and for not relapsing into drug usage.

Defense counsel argued that the minimum combined 75-month sentence

“seems too much” and requested the bottom of the Guideline sentence3

on count 1. In response, the district court agreed and stated:

“Well, I’m going to give you the bottom of the guideline range. I

think that it’s an unfairly severe sentence also, frankly, but I’m

bound by the statute. I mean, I have very little wiggle room.

This 60 month consecutive is a killer, if you ask me.”

The district court then sentenced Walters to serve 15 months

on count 1 and a consecutive 60 months on count 2. The court also

imposed concurrent two-year and five-ye a r terms of supervised

release, as well as a $200 special assessment, but no fine. After

imposition of the sentence, the court then stated:

I don’t know that I have the power to do this because the

924(c) count just requires everything be consecutive –

that is, the 60 months be consecutive with anything under

the other charge. I think I can’t do anything, and so

I’ll impose this sentence both under the guidelines and

in the exercis e of my unfettered discretion if the

guidelines were to be declared unconstitutional in whole

or in part.

Defense counsel objected and asserted that:

if the guidelines were declared unconstitutional, I would

like to come back and argue for a 60-month sentence, not

a 75-month sentence, because, as the count ’s already

pointed out, this seems to be unduly severe from the

standpoint of viewing this case outside of the framework

of the guidelines.

The district court agreed with counsel and stated, “in the exercise

of my u nfettered discretion, I would impose a 60-month sentence.

That’s an alternative and it’s only in the event the guidelines are

declared unconstitutional. In total.” Walters timely appealed.

DISCUSSION4

This Court differentiates between the two types of error

addressed in Booker

. S ee United States v. Villegas

, 404 F.3d 355,

364 (5th Cir. 2005); United States v. Mares

, 402 F.3d 511, 520 n.9

(5th Cir. 2005). Booker error is found where the district court

applied the mandatory Gui delines and enhanced a defendant’s

sentence on the basis of facts neither admitted by him nor found by

a jury beyond a reasonable doubt, in violation of the Sixth

Amendment. S ee Booker

, 125 S. Ct. at 756; Villegas

, 404 F.3d at

364. What this Court has termed “ F anfan error” is found where the

district cour t applied the mandatory Guidelines to enhance a

defendant’s sentence absent any Sixth Amendment Booker error. See

United States v. Martinez-Lugo , 411 F.3d 597, 2005 WL 1331282, at

*2 (5th Cir. Jun. 7, 2005); Villegas , 404 F.3d at 364.

Here, Walter s does not make a B ooker argument. Instead,

Walters argues that a sentence imposed under the mandatory

Guidelines system is erroneous under the new post- Booker sentencing

regime. Walters bases this on the Supreme Court’s rejection of a

remedy that would leave the Guidelines advisory in any case where

their application would result in a Sixth Amendment violation but

mandatory in all other cases. S ee Booker

, 125 S. Ct. at 768 (“Such

a two-propos al system seems unlikely to further Congress’ basic

objective of promoting uniformity in sentencing.”). Thus, Walters

asserts Fanfan error.

The government agrees with Walters that his objection in the5

district court to the court’s alternative sentence, in the event

the Guidelines were held unconstitutional, preserved hi s Fanfan

challenge. Regarding the standard of review, Walters urges that

the Fanfan error argued here is structural and thus insusceptible

of harmless error analysis. See Neder v. United States , 527 U.S.

1, 8-9 (1999). This Court has rejected that exact contention.

Martinez-Lugo

, 2005 WL 1331282, at *2 (finding argument

inconsistent with the requirement in Mares and Villegas “that the

error affect the particular defendant’s substantial rights, drawing

no distinction between a ‘ Booker ’ error and a ‘ Fanfan ’ error for

the purposes of employing plain error review”)(emphasis in

original).

We review a case where the defendant preserved his Fanfan

challenge in district court under the Rule 52(a) harmless error

standard. See M

ares

, 402 F.3d at 520 n.9 (“[I]f

. . . the issue

presented in Fanfan is preserved in the district court by an

objection, we will ordinarily vacate the sentence and remand,

unless we can say the error is harmless under Rule 52(a) of the

Federal Rules of Criminal Procedure.”); cf. Martinez-Lugo

, 2005 WL

1331282, at *2 (applying plain error review where Fanfan issue not

preserved in district court). Under harmless error review, “[a]ny

error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” F ED

. R. C RIM

. P. 52(a).

This Court determined in the context of a Fanfan c hallenge6

that “[i]t is clear after Booker that application of the Guidelines

in their mandatory form constitutes error that is plain.” United

States v. Valenzuela-Quevedo

, 407 F.3d 728, 733 (5th Cir. 2005);

see also Martinez-Lugo

, 2005 WL 1331282, at *2 (noting Fanfan error

is both “plain” and “error”). Thus, the only question is whether

the government has met its burden to show harmless error beyond a

reasonable doubt in the imposition of Walters’s sentence. S ee

United States v. Pineiro , 410 F.3d 282, 286 (5th Cir. 2005); s ee

also United States v. Olano

, 507 U.S. 725, 734-35 (1993) (noting

inquiry under harmless error to determine prejudice is the same as

with plain error, except burden falls on the government, not the

defendant); 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 reasonable doubt.”).

Whether the government has shown harmless error in the imposition

of Walters’s sentence.

The government notes that the district court could not revisit

the 60-month statutoril y mandated sentence imposed on count 2.

Indeed, Walters makes no argument to that effect. But the

government contends that in any event, the imposition of the 15-

month sentence as to count 1 constitutes harmless error because it

was a reasonable sentence. To that end, the government urges that

the district court took into accoun t the Guidelines, defense7

counsel’s arguments and Walters’s statements before sentencing, and

the PSR, which was prepared in compliance with Federal Rule of

Criminal Procedure 32(d). In addition, the government argues that

although the district court i ndicated that it believed the

mandatory 60-month consecutive sentence on count 2 was unfairly

severe, the court recognized it was bound by the statute.

According to the government’s characterization, the district court

gave no indication that it believed the 15-month sentence as to

count 1 was too harsh, except that the court stated that if the

Guidelines were declared totally unconstitutional, then i t would

impose a 60-month sentence.

The government also contends that f or the district court to

resentence Walters to a 60-month term of imprisonment, the court

would have to reduce Walters’s sentence on count 1 to probation;

and the court never indicated that it considered probation to be an

appropriate sentence for a felon-in-possession charge, especially

where the PSR showed Walters had two prior drug convictions.

Finally, the government argues that because the Guidelines were not

declared totally unconstitutional and the district court must still

c onsider the application of the Guidelines in a post- B ooker

environment, the court would likely resentence Walters to exactly

the same 15-month sentence on count 1 and thus to the same 75-month

combined sentence on both counts.

Walters argues that the government fails to show harmless8

error beyond a reasonable doubt. Walters points to the language of

the district court at sentencing indicating that in a post- Booker

world that allowed for “unfettered discretion,” it would choose to

exercise that discretion to conclude that the 75-month sentence it

felt constrained to impose was harsher than necessary in Walters’s

case (that is, to meet the purposes of sentencing identified in 18

U.S.C. § 3553(a)) and would choose to impose only the statutorily

mandated 60-month sentence pursuant to count 2 if the Guidelines

were declared unconstitutional. Indeed, Walters insists the

d istrict court could not have more clearly expressed such intent

than by saying, “[I]n the exercise of my unfettered discretion, I

would impose a 60-month sentence.”

After close examination of the sentencing hearing transcript,

we find that th e Fanfan e rror in this case was prejudicial to

Walters. The Fanfan error affected the sentence Walters received

because the mandatory nature of the Guidelines at the time of his

sentencing forced the district court to impose at least the minimum

15-month term for count 1, in addition to the statutorily mandated

60-month consecutive sentence on count 2, where the court indicated

that Walters’s total imposed sentence of 75 months see med too

harsh. See Mares , 402 F.3d at 521 (noting that “the standard for

determining wheth er an error affects substantial rights” is that

“the error ‘must have affected the outcome of the district court

proceedings’”) (quoting Olano

, 507 U.S. at 734); see also Pineiro

,9

410 F.3d at 286 (explaining the standard as “the district court

would have imposed the same sentence absent the error”).

The government is correct that the district court was “bound

by the statute,” 18 U.S.C. § 924(c)(1)(A)(i), to impose the 60-

month sentence on count 2 consecutively to any other sentence

(here, that imposed on count 1). However, we disagree with the

government’s contention that the district court gave no indication

that it believed the 15-month sentenc e on count 1 was too harsh.

In response to defense counsel’s contention that “75 months seems

too much” and his request for the minimum Guidelines sentence on

count 1 (here, 15 m onths), and after Walters had a chance to

allocute, the district court expressly stated that it would impose

the bottom of the Guidelines range on count 1 and that it thought

“ it’s an unfairly severe sentence also, frankly” – where “it’s”

likely referred to the 75-month minimum comb ined total sentence

just referenced by defense counsel. In any event, the district

court also indicated that it felt it had “very little wiggle room”

and thought it could not “do anything” to manipulate Walters’s

sentence in a situation where Walters was subject to the mandatory

Guidelines regime requiring a minimum 15-month sentence on count 1

to be i mposed consecutively to the statutorily mandated 60-month

sentence on count 2.

In addition, after the district court indicated it would

impose the 75-mon th sentence alternatively in the event “the

guidelines were to be declared unconstitutional in whole or in10

part,” defense counsel objected that:

if the guidelines were declared unconstitutional, I would

like to come back and argue for a 60-month sentence, not

a 75-month se ntence, because, as the court’s already

pointed out, this seems to be unduly severe from the

standpoint of viewing this case outside of the framework

of the guidelines.

In response, the c ourt stated, “Now, that might be true. All

right.” The court then elaborated, “No, here’s what I’ll do.

That’s true. They’re both gun charges, too. So, in the exercise

of my unfettered discretion, I would impose a 60-month sentence.”

This exchange similarly indicates that the district court agreed

with defense counsel that it was “true” that a 75-month sentence

affecting both counts “seems to be unduly se vere” when viewed

“outside of the framework of” the pre- Booker mandatory Guidelines.

The government is again correct that the district court then

stated, “That’s an alternative and it’s only in the event the

guidelines are declared unconstitutional. In total.” However, we

understand the district court’s statement to mean just what it

plainly reads

– t hat if the Guidelines were declared entirely

unconstitutional, Walters’s alternative total sentence would

certainly only be 60 months. This statement does not mean that the

district court would certainly choose in its post- Booker discretion

to impose 15 months on count 1 for a total of 75 months on “both

gun charges” simply becau se B ooker ’s result rendered the

Guidelines, which the court was constrained to apply at Walters’s

sentencing, advisory instead of “unconstitutional” “[i]n total.”11

Rather, the court gave multiple indications at Walters’s sentencing

hearing that resentencing would likely yi eld a combined sentence

lower than 75 months, specifically just the mandatory 60 months on

count 2. In light of this record, the government’s contention that

the district court “would likely” resentence Walters to 75 months

in a post- Booker environment fails. Therefore, we find that the

government has not sustained its burden to show harmless error

beyond a reasonable doubt here; Walters is entitled to resentencing

in accordance with Booker

.

CONCLUSION

Accordingly, we VACATE Walters’s sentence and REMAND for

resentencing.

VACATED and REMANDED.