United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2007 Decided February 15, 2008

No. 04-3086

UNITED STATES OF AMERICA,

APPELLEE

v.

DELJUAN BRANHAM,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00285-01)

A. J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant. Neil H. Jaffee, Assistant

Federal Public Defender, entered an appearance.

Mary Chris Dobbie, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and Roy W. McLeese, III and Elizabeth Trosman,

Assistant U.S. Attorneys.

Before: GARLAND and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A jury found Deljuan Branham

guilty of possession with intent to distribute 100 grams or more

of a mixture or substance containing phencyclidine (PCP), in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iv). Branham

contends that his conviction should be reversed because the

government’s evidence was insufficient to support it and

because the district court improperly admitted expert testimony

against him. For the reasons set forth below, we reject those

arguments and affirm the conviction.

Branham further contends that, if we do not reverse his

conviction, we should remand for resentencing in light of the

changes to Guidelines sentencing wrought by United States v.

Booker, 543 U.S. 220 (2005). The government agrees that a

remand is required but suggests that we order only a limited

remand, pursuant to United States v. Coles, 403 F.3d 764 (D.C.

Cir. 2005), to determine whether the district court “would have

imposed a different sentence materially more favorable to the

defendant had it been fully aware of the post-Booker sentencing

regime.” Id. at 770. Although we ordinarily would order a

Coles remand, in this case the district judge who sentenced

Branham has retired and hence is no longer available to answer

the Coles question. A remand for resentencing in light of

Booker is therefore the appropriate disposition. 

I

The evidence that the government presented at trial was as

follows. United States Postal Inspector Joseph Okronley

testified that, on June 5, 2003, he examined a suspicious express

mail package at the Baltimore-Washington International Airport

mail facility. He regarded the package as suspicious because the

handwritten label stated that the sender was a “Jhonson” who
3

lived on “West Jhonson Street” in Compton, California.

Okronley brought the package to the attention of Inspector

Sherwin Green, who contacted the Compton post office and

discovered that the address did not exist. Green then contacted

the letter carrier for the addressee -- a “Babbra Rice” at

Apartment 52, 2325 15th Street, N.W., Washington, D.C. The

carrier advised Green that the building at that address had threerather than two-digit apartment numbers, that he did not

recognize the addressee’s name, and that “there was drug

distribution going on” in apartment 301 of the building. Trial

Tr. 66-67, 129 (Mar. 10, 2004).

Inspector Okronley arranged to have a drug dog sniff the

package, and the dog alerted. After obtaining a search warrant,

the inspectors opened the package and found a can containing 32

ounces of liquid PCP sealed inside a vacuum-wrapped plastic

bag. A drug expert testified that the wholesale price of a 32-

ounce bottle on the West Coast was $7,000 to $8,000, and that

the street value of that amount of PCP was roughly $38,000. A

DEA chemist determined that one ounce of the liquid in the

bottle contained 26.6 grams of PCP.

Green testified that, on June 6, 2003, he and officers of the

Metropolitan Police Department (MPD) set up a controlled

delivery of the package. Wearing a mail carrier’s uniform and

driving a mail truck, Green parked in front of the building on

15th Street and pretended to be busy with work inside the truck.

A few minutes later, defendant Deljuan Branham called to

Green from the doorway of the building and asked if he was

coming inside. Green approached and responded that he had a

package for apartment 52, but that there was no such apartment

in the building. Branham then asked if the package was for

Barbara Wrice. Branham said that Wrice was his aunt, that she

lived in apartment 512, and that she had “been calling the post

office all day trying to get this package.” Trial Tr. 86 (Mar. 10,
4

2004). Green testified that he knew Wrice had not been calling

the post office because he had asked the post office to contact

him on his cell phone if anyone inquired about the package, and

there had been no call.

Green further testified that Branham appeared “anxious to

get the package.” Id. at 87. He repeatedly asked Green if he

could take the package and told Green that Wrice had sent him

down to the lobby to get it for her. Green told Branham that he

had to deliver the package to apartment 512 and that he would

need to see Branham’s identification. Branham told Green that

he had a key to the apartment and suggested that they go upstairs

together; Green agreed and went to the truck to get the package.

While Green was gone, Sergeant Darrell Johnson of the MPD,

dressed in plain clothes, approached the building. He pretended

that he was there to visit a female resident, and Branham let him

into the lobby. 

When Green returned from the truck with the package, he

changed the plan and asked Branham to bring his identification

and the apartment key down to the lobby instead. Branham

agreed, and a few minutes later came back to the lobby and

showed Green the key and his ID. Green handed him a postal

delivery form to fill out. According to Green, Branham

appeared nervous as he filled out the form. He wrote down an

incorrect street address and signed a name -- “Wessaria

Branham” -- that did not match his identification, although

Wrice later testified that she called him “Wes.”

After Branham completed the paperwork, Green handed

him the package and gave Sergeant Johnson a signal to take

Branham into custody. Johnson then approached, identified

himself as a police officer, and told Branham that he was under

arrest. Branham resisted, but he was ultimately restrained and

apprehended. 
5

After the arrest, other MPD officers conducted a search of

Wrice’s apartment with her consent. MPD Detective James

Zerega testified that Wrice was in the bedroom and appeared to

be bedridden. Two men were also in the apartment. One came

out of the bathroom as the police entered; the other was in the

living room. One of the men had $2,386 in cash on him. The

officers found two vials of PCP in the freezer, two ziploc bags

of marijuana on the grass beneath the open bathroom window,

and a supply of empty ziploc bags on the kitchen table matching

those containing the marijuana. Zerega testified that marijuana

and PCP were often used “in tandem,” Trial Tr. 126 (Mar. 12,

2004), although the government’s drug expert testified that he

had not seen “a whole lot of PCP on marijuana” in recent years,

Trial Tr. 113 (Mar. 11, 2004 (PM)).

 At trial, Wrice testified that she suffered from numerous

disabling afflictions. She said that the PCP in the freezer was

not hers, that she had never ordered PCP, and that she did not

know it was in the apartment. She said that she had known

Branham for about ten years, that she thought he lived in

apartment 301 of her building, that he was like a friend or

nephew to her, that he often came over to keep her company or

help with errands, that he picked up her mail for her on

occasion, and that he and the other two men were friends who

would sit in her front room and talk for hours. She testified that

she was not expecting a package on June 6, 2003, and did not

know anyone in California. On direct examination, Wrice

testified that she did not know if Branham had asked if he could

get her mail that day or if she had asked him to do so. On crossexamination, she testified that she had asked him. 

On redirect examination, however, the government

established that Wrice told the grand jury that Branham had

asked to go to the mailbox for her because he was expecting a

package, and that he had previously received two or three
6

packages at her address. Detective Zerega also testified that he

had taken Wrice’s statement immediately after Branham’s

arrest, and that she told him that, an hour before the arrest,

Branham had asked her for her mail key because he “‘was

waiting for a package to come to [her] address.’” Trial Tr. 54

(Mar. 12, 2004). She further told Zerega that Branham lived in

apartment 301. Both the statement to Zerega and the grand jury

testimony were entered into evidence.

Branham did not testify. His defense consisted of the

testimony of three witnesses. The building’s resident manager

testified that Branham did not actually live in the building but

that he visited often. He further testified that he had never seen

anyone sell drugs in or around the building. The defense also

called a witness who testified that he was in the lobby at the

time of Branham’s arrest, and that he never saw the postal

carrier give Branham the package. Finally, Branham called Paul

Wetzel, who had moved into apartment 301 in October 2003,

after the events in question. Wetzel was called to rebut

testimony by an MPD officer that Wetzel had told him people

knocked on his door late at night, asking for “Deljuan” and

“Wesley.” Wetzel testified that he was unable to recall what

names the people who knocked on his door had mentioned, and

merely told the officers that Deljuan and Wesley “sounded

familiar” when the officers mentioned those names. Trial Tr.

58-59 (Mar. 15, 2004 (AM)).

On March 16, 2004, after a four-day trial, the jury found

Branham guilty of possession with intent to distribute 100 grams

or more of a mixture or substance containing PCP, an offense

that carries a statutory mandatory minimum sentence of 5 years’

imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iv); Presentence

Investigation Report (PSR) ¶ 59. The sentencing range under

the United States Sentencing Guidelines was 121-151 months.

PSR ¶ 60. On June 24, 2004, the district court sentenced
7

Branham to 132 months. Since the date of sentencing,

Branham’s sentencing judge has retired from the bench.

Branham now appeals both his conviction and his sentence.

II

Branham appeals his conviction on two grounds. His first

contention, which need not detain us long, is that the district

court erred in permitting Inspector Green to testify about how

and why drug dealers use express mail to send narcotics.

Branham contends that the testimony constituted expert opinion,

and that Green was not qualified as an expert. While

disagreeing that only an expert could testify as to these points,

the government also argues that any error in admitting that

portion of Green’s testimony was harmless, see FED.R.CRIM.P.

52(a), because it did not inculpate Branham. The government’s

point is well taken. Branham did not dispute that the package

was sent by a drug dealer or that it contained PCP. His defense

was that he never took possession of the package and that he did

not know what it contained -- topics not covered in the disputed

testimony. Not surprisingly, Branham did not respond to the

government’s harmless error argument in his reply brief.

Because we agree with that argument, we reject Branham’s

claim that the admission of Green’s testimony compels reversal

of his conviction.

The defendant’s principal contention is that the

government’s evidence was insufficient to support his

conviction. Our standard for reviewing such a challenge is

narrow: We must accept the jury’s guilty verdict if we conclude

that “‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United

States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In making that

determination, “the prosecution’s evidence is to be viewed in the
8

light most favorable to the government, drawing no distinction

between direct and circumstantial evidence, and giving full play

to the right of the jury to determine credibility, weigh the

evidence and draw justifiable inferences of fact.” United States

v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005) (internal quotation

marks and citation omitted). Branham argues that the

government’s evidence was insufficient because “there was no

indication defendant had any idea what was in the package.”

Appellant’s Br. 28. We disagree.

First, there was evidence from which the jury could infer

that the package, containing thousands of dollars worth of drugs,

was sent to a mailbox to which Branham had arranged his own

ready access. Wrice testified that Branham had picked up her

mail for her on prior occasions, and she confirmed that she told

the grand jury that he had previously received two or three

packages of his own at her address. When Branham asked for

her mailbox key on the day of the delivery, she gave it to him

without hesitation.

Second, there was evidence from which the jury could

conclude that Branham was anticipating the arrival of the

package. Inspector Green testified that Branham called to him

when he was at the postal truck, asked him whether he was

coming into the building, appeared anxious to get the package,

and repeatedly asked Green if he could take the package from

him. See United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir.

1995) (finding that the defendant’s “general keen interest in the

arrival of the package” was “circumstantial evidence supporting

an inference that [the defendant] had knowledge of the

package’s true contents”); United States v. Simms, 18 F.3d 588,

594 (8th Cir. 1994) (holding that evidence that the defendant

“was expecting the package” was support for “the inference of

his knowing involvement”). Moreover, although Branham told

Green that it was Wrice who was anticipating the arrival of the
9

1

Although Wrice’s trial testimony was inconsistent with some

parts of her grand jury testimony, those parts were admissible as

substantive evidence, see FED. R. EVID. 801(d)(1), and a reasonable

juror could have credited the grand jury testimony.

package, Wrice testified that she was not. In fact, she told both

Detective Zerega and the grand jury that Branham had said he

was expecting a package and had asked for her key so he could

retrieve it.1

Third, there were numerous pieces of evidence suggesting

that Branham was trying to conceal his connection to the

package, from which the jury could conclude that he had

knowledge of its illegal contents. See Jackson, 55 F.3d at 1226

(holding that the defendant’s “attempts to disassociate his name

from the delivery of the package showed consciousness of

guilt”); Simms, 18 F.3d at 594 (holding that the “fact that [the

defendant] signed a false name” on a delivery sheet “supports

the inference that he wanted to conceal his true identity, which,

in turn, supports the inference that his involvement in the

transaction was knowing and intentional”). In this regard, there

was Branham’s just-mentioned statement to Green that it was

Wrice who was expecting the package, contradicted by Wrice’s

testimony; there was also Branham’s statement that Wrice had

been calling the post office for the package, contradicted by

Green’s information that no one had done so. In addition, there

was the fact that Branham wrote a name and address on the

delivery receipt that differed from those on his identification

card. Although a jury could have concluded from Wrice’s

testimony (that she called him “Wes”) that “Wessaria Branham”

was Branham’s true name, it did not have to do so. Green’s

testimony that Branham appeared nervous while filling out the

delivery receipt was further evidence from which the jury could

infer his guilty knowledge. See United States v. Johnson, 57

F.3d 968, 972 (10th Cir. 1995) (holding that, inter alia, the
10

2

Branham did not object to this testimony on hearsay (or any

other) grounds at trial, and does not argue on appeal that it constitutes

plain (or any other kind of) error. See United States v. White, 116 F.3d

903, 923 (D.C. Cir. 1997) (noting that hearsay evidence not objected

to at trial may be considered by the jury and appellate court in the

absence of plain error).

defendant’s “nervousness . . . directed at the package in

question,” and the fact that she used a false first name and

address on an airbill, supported the “jury’s reasonable inference

of [her] knowledge” of the package’s contents).

Finally, there was evidence that would support an inference

that Branham was involved in drug dealing out of Wrice’s

building. Wrice testified that Branham spent hours with his

friends in her apartment, where the police found PCP that Wrice

testified was not hers. Further, the police found more than

$2,000 in the pocket of one of those friends. From this, a

reasonable jury could conclude that Branham and his friends

took advantage of a bedridden woman and used her apartment

to store illegal drugs. Such a conclusion was also supported by

Green’s testimony that the regular mail carrier had reported that

drug distribution was going on in apartment 301 of the building2

-- the apartment in which Wrice thought Branham lived. See

Simms, 18 F.3d at 594-95 (affirming a conviction for receipt of

a package of crack cocaine where the defendant had been

involved in other drug activity and signed a false name). All of

this, together with the evidence recited in the preceding

paragraphs, was more than sufficient to permit a rational trier of

fact to find beyond a reasonable doubt that Branham knew the

package contained a controlled substance. 

Branham next argues that, even if the jury could have

reasonably concluded that he knew the package contained a

controlled substance, it could not have found that he specifically
11

3

See United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir.

2002); United States v. King, 345 F.3d 149, 152-53 (2d Cir. 2003);

United States v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001); United

States v. Brower, 336 F.3d 274, 276-77 (4th Cir. 2003); United States

v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003); United

States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003); United States v.

Carrera, 259 F.3d 818, 830 (7th Cir. 2001); United States v.

Sheppard, 219 F.3d 766, 768 n.2, 769 (8th Cir. 2000); United States

v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002); United States v.

Briseno, 163 F. App’x 658, 666 (10th Cir. 2006); United States v.

Garcia-Frias, 239 F. App’x 575, 577 (11th Cir. 2007). There is,

however, some intra-circuit inconsistency on this point. In United

States v. Jenkins, 345 F.3d 928, 942 (6th Cir. 2003), the Sixth Circuit

listed a defendant’s knowledge that a package contained cocaine as an

element of the offense, although it had recently rejected a requirement

knew the substance was PCP. Such a finding, he insists, is

required for conviction. Because we do not agree that such a

finding is required, we need not consider whether it could

reasonably have been made.

Branham’s contention is that a conviction for violating 21

U.S.C. § 841(a) and (b)(1)(B)(iv) requires proof that the

defendant knew the drug he possessed was PCP. He bases this

claim on Apprendi v. New Jersey, which held that, “[o]ther than

the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. 466, 490 (2000). After Apprendi, Branham maintains,

a defendant’s knowledge of drug type is an element of the

offense that the government must prove beyond a reasonable

doubt. Appellant’s Reply Br. 7. In making this claim, Branham

faces an uphill climb, given that our eleven sister circuits have

all held, after Apprendi, that a defendant’s knowledge of drug

type is not an element of the offenses proscribed by § 841(a) and

(b).3

 Our own examination persuades us that the hill is
12

to prove knowledge of drug type and quantity in Villarce, 323 F.3d at

439 (citing United States v. Garcia, 252 F.3d 838, 844 (6th Cir.

2001)). Similarly, the Eighth Circuit stated in Simms that “the

government must prove beyond a reasonable doubt that the [the

defendant] ‘knowingly possessed cocaine with intent to distribute it,’”

18 F.3d at 594 (quoting United States v. Bennett, 956 F.2d 1476, 1482

(8th Cir. 1992)), but it subsequently explained in Sheppard that

knowledge of drug type and quantity is not required, see 219 F.3d at

768 n.2, 769.

insurmountable.

Branham is correct that, “[a]fter Apprendi, . . . this court

interpreted § 841 as a tripartite statute establishing three separate

offenses, with different maximum sentences based on [the] drug

quantity” thresholds for specific drug types listed in that section.

United States v. Graham, 317 F.3d 262, 274 (D.C. Cir. 2003);

see United States v. Webb, 255 F.3d 890, 895-96 (citing United

States v. Fields, 242 F.3d 393, 396 (D.C. Cir. 2001), aff’d and

amended on reh’g, 251 F.3d 1041, 1043 (D.C. Cir. 2001)).

Therefore, “‘before a defendant can be sentenced to any of the

progressively higher statutory maximums that are based on

progressively higher quantities of drugs specified in subsections

841(b)(1)(A) or (B), the Government must state the drug type

and quantity in the indictment, submit the required evidence to

the jury, and prove the relevant drug quantity beyond a

reasonable doubt.’” United States v. Lafayette, 337 F.3d 1043,

1048 (D.C. Cir. 2003) (quoting Fields, 242 F.3d at 396). In

accordance with these requirements, Branham’s indictment

listed a mixture or substance containing PCP as the drug type

and 100 grams or more of that mixture or substance as the

quantity. It was the jury’s determination that Branham’s crime

involved that drug type and quantity that subjected him to the

mandatory minimum sentence of 5 years’ and maximum

sentence of 40 years’ imprisonment specified in 21 U.S.C. §
13

4

Had Branham been charged and found guilty of possession with

intent to distribute a kilogram or more of a mixture or substance

containing PCP, he would have faced a mandatory minimum sentence

of 10 years and a maximum sentence of life. See 21 U.S.C. §

841(b)(1)(A)(iv). Had the crime involved less than 100 grams of such

a mixture or substance, or had the indictment charged no specific

quantity, Branham would have faced a maximum sentence of 20 years,

with no mandatory minimum. See 21 U.S.C. 841(b)(1)(C). See

generally Lafayette, 337 F.3d at 1048; Webb, 255 F.3d at 897. 

841(b)(1)(B)(iv).4

But nothing in § 841 or our case law suggests that

knowledge of the specific drug type (or quantity) at issue is an

element of any of the offenses it states. To the contrary,

§ 841(a) requires only that the defendant “knowingly or

intentionally . . . possess with intent to . . . distribute . . . a

controlled substance.” 21 U.S.C. § 841(a) (emphasis added).

And § 841(b), which assesses increasing penalties for different

combinations of drug types and quantities, requires proof only

that the offense “involv[ed]” the specified type and quantity. 21

U.S.C. § 841(b). In short, the defendant’s knowledge of the type

of drug at issue in his offense is not a “fact that increases the

penalty for a crime beyond the prescribed statutory maximum,”

and hence is not a fact that “must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.

Accordingly, there is no ground for concluding that the evidence

was insufficient to support the charge upon which Branham was

convicted.

III

 Branham also appeals from the sentence imposed by the

district court. At the time of his sentencing in 2004, courts
14

regarded the U.S. Sentencing Guidelines as mandatory. In

United States v. Booker, however, the Supreme Court held that

the enhancement of a defendant’s sentence pursuant to a

mandatory guidelines regime violates the Sixth Amendment.

543 U.S. 220, 244 (2005); see United States v. Adewani, 467

F.3d 1340, 1341 (D.C. Cir. 2006); United States v. Mejia, 448

F.3d 436, 452 (D.C. Cir. 2006). To remedy this constitutional

defect, the Court severed the provisions of the Sentencing

Reform Act that made the Sentencing Guidelines mandatory,

thereby rendering them “effectively advisory.” Booker, 543

U.S. at 245; see Adewani, 467 F.3d at 1341.

In light of Booker, both parties agree that the district court

erred in imposing a mandatory Guidelines sentence. In a case

in which the defendant objected to the mandatory application of

the Guidelines in the district court, and where we cannot find the

error harmless, we must vacate the sentence and remand for

resentencing. See United States v. Ayers, 428 F.3d 312, 312

(D.C. Cir. 2005); United States v. Coumaris, 399 F.3d 343, 351

(D.C. Cir. 2005). However, where -- as here -- the defendant did

not object in the district court, we review a Booker claim only

for plain error. See United States v. Coles, 403 F.3d 764, 767

(D.C. Cir. 2005). In Coles, we held that the dispositive question

in such a case is “whether there would have been a materially

different result, more favorable to the defendant, had the

sentence been imposed with the post-Booker sentencing

regime.” Id.

We further held in Coles that, where the sentencing record

is insufficient for us to determine what sentence the district

court would have imposed had it known it should have regarded

the Guidelines as merely advisory, the appropriate disposition is

not to vacate and remand for a full resentencing, but rather to

grant a limited remand directed to a single question: “while

retaining jurisdiction over the case, we [will] remand the record
15

5

If thereafter the district court notifies this court that it would

have imposed a materially more favorable sentence, we will then

vacate the sentence and remand for a full resentencing. See Coles, 403

F.3d at 770-71.

to the District Court . . . to determine whether it would have

imposed a different sentence, materially more favorable to the

defendant, had it been fully aware of the post-Booker sentencing

regime.” Id. at 771; see Mejia, 448 F.3d at 454.5

 Our rationale

was as follows: “‘[t]he only practical way (and it happens also

to be the shortest, the easiest, the quickest, and the surest way)

to determine whether the kind of plain error argued in these

cases has actually occurred is to ask the district judge.’” Coles,

403 F.3d at 770 (alteration in original) (quoting United States v.

Paladino, 401 F.3d 471, 482 (7th Cir. 2005)). In adopting this

limited remand procedure, we followed the lead of the Seventh

and Second Circuits. See Paladino, 401 F.3d at 484; United

States v. Crosby, 397 F.3d 103, 117-18 (2d Cir. 2005).

Both the government and the defendant agree that there is

nothing in the record that indicates how the district court would

have sentenced Branham had the court known that the

Sentencing Guidelines were only advisory, and both therefore

agree that a remand is required. Branham also acknowledges

that his case “would ordinarily be subject to [a limited, Coles]

remand.” Appellant’s Br. 32. However, because the judge who

sentenced him has since retired, Branham argues that we should

instead vacate the sentence and remand for a complete

resentencing. The government, by contrast, maintains that a

Coles remand is still appropriate, albeit with a new sentencing

judge. But the government concedes that, under these

circumstances, we should modify the Coles procedure -- which

ordinarily contemplates that the district court will hear only

from the defendant’s counsel, see Coles, 403 F.3d at 770 -- to

permit the defendant to appear at the remand hearing as well.
16

This is the first time that we have faced the question of how

to treat an unobjected-to Booker error when the original

sentencing judge is no longer available to preside over a remand.

The Seventh and Second Circuits, which we followed in Coles,

have divided over that question. The Seventh Circuit has

reasoned that, because “the only person who could really tell us

whether he would have imposed the same sentence based on the

facts and evidence of a particular case is the original ‘sentencing

judge,’” there is “no purpose in restricting a newly assigned

judge to comparing the sentence he would impose post-Booker

. . . to the sentence initially imposed.” United States v. Bonner,

440 F.3d 414, 416, 417 (7th Cir. 2006). Thus, in the “unusual

and rare circumstance[]” of a sentencing judge’s unavailability,

the Seventh Circuit vacates the sentence and remands for full

resentencing. Id. at 417; see also United States v. Sanders, 421

F.3d 1044, 1052 (9th Cir. 2005) (holding that, when the original

sentencing judge is unavailable, “the purposes underlying [the

limited remand] are frustrated,” and “the appropriate response

to Booker error is to vacate the original sentence and remand for

a full resentencing hearing”).

The Second Circuit, by contrast, has reasoned that the

“direct sentencing experience” of all district judges “necessarily

means” that a judge on reassignment can determine “whether

there is a nontrivial difference between a challenged original

sentence and one that would have been imposed with a correct

understanding of the law.” United States v. Garcia, 413 F.3d

201, 228 (2d Cir. 2005). That circuit has therefore employed a

modified limited remand, in which the defendant has the right to

appear at the remand hearing, and the reassigned judge

“consider[s] what sentence he or she would have imposed on

behalf of the court with the benefit of Booker and a full record.”

Id. The reassigned judge need not, however, attempt the

“impossible” task of determining “what sentence the original

judge would have imposed.” Id. 
17

Although the Second Circuit’s approach is not

unreasonable, we come down on the side of the Seventh. The

question we asked in Coles was whether the original sentencing

judge would have imposed a materially more favorable sentence

had he known that he had sentencing discretion. Because

district courts -- no matter how collegial they may be -- do not

have a collective consciousness, one judge’s conclusion as to

what another would have done in a circumstance the latter never

contemplated would truly be a legal fiction. (The Second

Circuit does not disagree, conceding that determining what the

first judge would actually have done would be “impossible.”)

Nor, under these circumstances, is a limited remand a “practical

way” -- or a “short,” “easy,” “quick,” or “sure” way -- to resolve

our problem. Coles, 403 F.3d at 770. We cannot simply “ask

the district judge” who imposed the sentence to consider the

issue in light of a record he or she knows quite well. Id.

Instead, a newly assigned judge would have to examine the

entire record afresh, and hear from both counsel and the

defendant.

Because the rationale for a limited remand in a case like this

is weak and the practical advantages are slight, we are reluctant

to accept the government’s suggestion to institutionalize yet a

third kind of remand -- effectively Coles-plus (or full

resentencing-minus). We are particularly reluctant to do so

since there are so few cases as to which it is likely to apply.

Booker does not apply retroactively to cases on collateral

review, see In re Fashina, 486 F.3d 1300, 1303 (D.C. Cir.

2007), and, as the government concedes, there are few preBooker cases left in the direct review pipeline. Indeed, this one

arises only because Branham’s appeal was substantially delayed

by difficulties in obtaining and transcribing the trial record.

Under these circumstances, adding more layers of complexity to

our remand procedures seems not worth the candle. 
18

Accordingly, we hold that, where a defendant did not raise

a Booker-like objection at his original sentencing, and the record

does not reveal whether the now-unavailable sentencing judge

would have imposed a materially different sentence under a

post-Booker regime, the appropriate disposition is to vacate the

sentence and remand the case for resentencing. As that is the

situation here, that is our disposition.

IV

Defendant Branham’s conviction is affirmed, and the case

is remanded for resentencing consistent with United States v.

Booker.

So ordered.