In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-3398

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES T. SCHLIFER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Wisconsin.

No.04-CR-59-C-01—Barbara B. Crabb, Chief Judge.

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ARGUED MARCH 1, 2005—DECIDED APRIL 7, 2005

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Before KANNE, EVANS and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. James Schlifer appeals his

sentence of 120 months on the ground that the district court

violated the Sixth Amendment by sentencing him as a

career offender without presenting the facts underlying his

prior convictions to a jury. He also argues that in light of

the Supreme Court’s decision in United States v. Booker,

125 S. Ct. 738 (2005), the district court erred in applying

the guidelines under the prior mandatory sentencing scheme.

Although Schlifer’s Sixth Amendment argument lacks merit,

we vacate his sentence and remand for resentencing be-
2 No. 04-3398

cause the district court erred under Booker by sentencing

Schlifer under a mandatory guidelines system, and the

government has not demonstrated that the error was harmless.

I. BACKGROUND

In June 2004 Schlifer pleaded guilty to one count of

conspiracy to manufacture methamphetamine, in violation

of 21 U.S.C. §§ 846 and 841(a)(1). Under the November

2003 sentencing guidelines, Schlifer’s crime ordinarily

would have carried a base offense level of 30 based on evidence that the quantity of methamphetamine was at least

360 grams. U.S.S.G. § 2D1.1(c)(5). However, the probation

officer who prepared the presentence investigation report

(PSR) recommended that the court sentence Schlifer as a

career offender because among his prior crimes were two

unrelated convictions for aggravated assault. See U.S.S.G.

§ 4B1.1. Under the career offender guideline, Schlifer’s base

offense level increased to 32 and his criminal history category was VI regardless. U.S.S.G. § 4B1.1. The court then

deducted three levels for acceptance of responsibility. See

U.S.S.G. § 3E1.1. This resulted in a total offense level of 29,

which, combined with Schlifer’s criminal history category of

VI, yielded a sentencing range of 151 to 188 months.

In response to the PSR and again at his sentencing hearing, Schlifer objected to being sentenced as a career offender.

He argued that in order to classify him as a career offender

the district court was required to find facts beyond the mere

existence of two prior convictions. Specifically, he argued

that the district court had to determine whether his prior

convictions were for crimes of violence and whether the two

crimes were unrelated. See U.S.S.G. §§ 4B1.2(c), 4A1.2(a) &

cmt. n.3. These determinations, Schlifer argued, required the

district court to go beyond the “fact of a prior conviction”

and thus exceeded the judicial factfinding exception for
No. 04-3398 3

recidivism recognized in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), and preserved in Apprendi v.

New Jersey, 530 U.S. 466 (2000). Accordingly, Schlifer contended that under Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 375 F.3d 508 (7th Cir.

2004), these facts must be admitted or proven beyond a

reasonable doubt before they could be used to increase his

guideline range. The district court rejected Schlifer’s argument, concluding that Blakely and this court’s opinion in

Booker do not apply to prior convictions.

The district court denied Schlifer’s motion to depart under

U.S.S.G. § 5K2.0, rejecting his argument that his offense

primarily involved manufacturing methamphetamine for

personal use and thus fell outside of the “heartland” of drug

manufacturing and distribution cases contemplated by the

guidelines. The court, however, granted the government’s

motion for a downward departure based on Schlifer’s

substantial assistance. See U.S.S.G. § 5K1.1. The court calculated a new effective range of 120 to 150 months by departing the equivalent of three levels, and sentenced Schlifer

to 120 months’ imprisonment.

II. ANALYSIS

Schlifer argues in his opening brief that the district court

impermissibly sentenced him as a career offender without

submitting the issue to a jury. After that brief was filed,

and after his case had already been set for oral argument,

the Supreme Court decided Booker. We granted Schlifer’s

motion to file a supplemental brief in light of Booker. Schlifer

now argues in addition that his sentence is erroneous

because the district court imposed it under the mandatory

guidelines system that existed prior to Booker. He thus contends that his sentence should be vacated and his case

remanded for resentencing in light of the Court’s decision

that the guidelines are advisory.
4 No. 04-3398

A defendant is a career offender under U.S.S.G. § 4B1.1

if he commits a felony drug offense after the age of 18 and

has at least two prior felony convictions for crimes of violence or drug trafficking offenses. The prior offenses must

be unrelated. Schlifer argues in his opening brief that these

determinations require a sentencing court to find facts

outside the judgment of conviction and thus entail impermissible factfinding by the court.

Prior to the Supreme Court’s decision in Booker, Schlifer’s

appeal would have been frivolous. Neither the Supreme

Court’s decision in Blakely nor this court’s opinion in Booker

disturbed the principle that the “fact of a prior conviction”

falls outside the Apprendi rule that facts increasing a sentence beyond the otherwise applicable statutory maximum

must be proved to a jury beyond a reasonable doubt. See

United States v. Pittman, 388 F.3d 1104, 1109 (7th Cir. 2004).

Thus in Pittman this court held that imposing a career

offender sentence under § 4B1.1 without resort to a jury or

proof beyond a reasonable doubt of the prior convictions did

not violate Blakely as interpreted by this court in Booker. Id.

Pittman has not been affected by the Supreme Court’s

decision in Booker because the Court again preserved the

Almendarez-Torres exception for prior convictions. See

Booker, 125 S. Ct. at 758. And, although the Supreme Court

recently called its future into question, the AlmendarezTorres exception for prior convictions still stands. Shepard

v. United States, 2005 WL 516494 (U.S. March 7, 2005).

Schlifer attempts to distinguish his case by arguing that

the district court’s conclusion that he is a career offender

entailed finding facts outside the “fact of a prior conviction,”

namely, whether his prior convictions are for crimes of violence and whether they are “related.” But we have already

rejected a similar argument in United States v. Morris, 292

F.3d 1010 (7th Cir. 2002). In Morris, a defendant who was

sentenced under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), argued that his sentence was unconstitutional
No. 04-3398 5

under Apprendi because the government did not prove beyond a reasonable doubt that his prior convictions had been

committed on separate occasions as required by the statute.

We rejected the argument, noting that there was no precedent for “parsing out the recidivism inquiry.” Id. at 1012.

Likewise, Schlifer cites no authority in support of his argument that, although “the fact of a prior conviction” may be

found by a judge by the preponderance of the evidence, the

factors that bear on that determination must be proved

beyond a reasonable doubt. In this case, the district court did

not engage in impermissible factfinding with respect to its determination that Schlifer was a career offender, and Schlifer’s

sentence accordingly does not violate the Sixth Amendment.

In his supplemental brief, however, Schlifer raises the

nonfrivolous argument that the Supreme Court’s remedial

opinion in Booker invalidates his sentence even in the absence of a Sixth Amendment violation. In Justice Stevens’s

opinion in Booker, the Court extended its holding in Blakely

to the federal sentencing guidelines and held that the Sixth

Amendment right to trial by jury is violated where a

defendant’s guidelines range is increased based on facts

(other than a prior conviction) found by the judge without

a jury or using a preponderance standard. Booker, 125 S.

Ct. at 756. Second, the Court, in an opinion authored by

Justice Breyer, severed from the authorizing statute the

provision that called for the mandatory application of the

Guidelines and the provision that established the appellate

standard of review. Id. at 765. The Court thus crafted a

system under which the district courts are obligated to

consider the guidelines but are not bound by them. Id. at

767.

The remedial portion of the Court’s decision, which invalidates the mandatory application of the guidelines and

instead requires the courts to consult them in an advisory

fashion, must be applied to all cases pending on direct review,

even in the absence of a Sixth Amendment violation. See id.
6 No. 04-3398

1 The Government would render the Guidelines advisory in ‘any case in which the Constitution prohibits’ judicial factfinding. But it apparently would

leave them as binding in all other cases. We agree

with the first part of the Government’s suggestion.

However, we do not see how it is possible to leave

the Guidelines as binding in other cases. . . . [W]e

believe that Congress would not have authorized a

mandatory system in some cases and a nonmandatory system in others, given the administrative

complexities that such a system would create. Such

a two-system proposal seems unlikely to further

Congress’ basic objective of promoting uniformity in

sentencing.

Id. at 768.

at 765. Thus in every pending appeal where the district court

sentenced a defendant under the now-defunct mandatory

guidelines scheme, error will have been committed. See id.

at 768,1

 769 (holding that parties in respondent Fanfan’s

case “may seek resentencing under the system set forth in

[Booker]” though “Fanfan’s sentence d[id] not violate the

Sixth Amendment”); United States v. Paladino, Nos. 03-2296

et al., 2005 WL 435430, at *7 (7th Cir. Feb. 25, 2005) (finding Booker error where a portion of defendant Velleff’s

sentence “was based on mandatory provisions of the sentencing guidelines”); see also, United States v. Crosby, 397 F.3d

103, 114-15 (2d Cir. 2005); United States v. Hughes, 2005

WL 628224, at *4 (4th Cir. Mar. 16, 2005); United States v.

Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005).

The existence of error, however, does not mean that every

appeal must lead to resentencing. In Booker, the Court

instructed that the “ordinary prudential doctrines” of plain

error and harmless error should be applied in determining

whether resentencing is necessary. 125 S. Ct. at 769. Thus

we must first determine whether Schlifer preserved his
No. 04-3398 7

Booker claim and what standard of review applies to the

claim. See United States v. McDaniel, 398 F.3d 540 (6th

2005). The doctrine of plain error applies when a defendant

forfeits a ground in the district court but raises it on appeal.

United States v. Pawlinski, 374 F.3d 536, 540 (7th Cir. 2004).

Otherwise, the appellant is entitled to plenary review of a

sentencing error.

This is not a plain error case, and our recent decision in

Paladino is inapposite here. Schlifer was sentenced prior to

the Supreme Court’s opinion in Booker, but he objected to

his sentence in the district court on Blakely grounds.

Schlifer also anticipated the possibility that the guidelines

were severable. His objection was specific enough to preserve the argument he makes now about the mandatory

character of his sentence because it was sufficient to alert

“the court and opposing party to the specific grounds for the

objection.” United States v. Linwood, 142 F.3d 418, 422 (7th

Cir. 1998). This is also the position recently taken by the

Tenth Circuit, which held that an appellant who raised a

Blakely argument in the district court also preserved for

appeal a Booker error. See Labastida-Segura, 396 F.3d at

1143. In contrast, the courts of appeal that have applied

plain error analysis to a Booker claim have done so because

no Sixth Amendment challenge was raised in the district

court. E.g., Paladino, 2005 WL 435430, at *7; Hughes, 2005

WL 628224, at *5; United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005).

Because, in effect, the district court’s error amounts to a

misapplication of the guidelines, Schlifer’s sentence must be

vacated unless the error was harmless. See United States v.

Hollis, 230 F.3d 955, 958 (7th Cir. 2000); United States v.

Jackson, 32 F.3d 1101, 1109-10 (7th Cir. 1994). When an

error relates to the validity of a defendant’s sentence, it is

harmless only if it did not affect the district court’s choice

of sentence. United States v. Smith, 332 F.3d 455, 460 (7th

Cir. 2003); Jackson, 32 F.3d at 1109.
8 No. 04-3398

The government argues in its supplemental brief that any

error in Schlifer’s sentence was harmless because it did not

affect the district court’s choice of sentence. First, the

government argues that the district court’s decision to

depart downward the equivalent of just three offense levels

based on Schlifer’s substantial assistance signals the court’s

unwillingness to exercise the discretion already available to

it by further lowering Schlifer’s sentence. This argument

has some facial appeal, but it ignores the fact that a sentencing judge, prior to Booker, had the guidelines and the

appellate standard of review in mind when fashioning a

departure. A departure decision, even if “discretionary,” was

nevertheless informed by the guidelines and thus sheds

little light on what a sentencing judge would have done

knowing that the guidelines were advisory.

Moreover, although the size of the departure was within

the court’s discretion, see U.S.S.G. § 5K1.1, the government

cites no examples of past cases in which this argument has

been accepted as basis for concluding that a guidelines misapplication was harmless. Typically, we require a higher

degree of certainty for such a conclusion. For example, we

have noted that when a sentencing judge must choose between two sentencing ranges that overlap, and expressly

acknowledges that it would impose the same sentence

under either range, this court can be certain that an error

in choosing the wrong range was harmless. Jackson, 32

F.3d at 1110. But “there is no such certainty here.” See id.

Nor is this a case where the district court clearly stated

that it wanted to impose the maximum available sentence,

see United States v. Benitez, 92 F.3d 528, 539 (7th Cir. 1996),

or where the district court “erred on the high side but the

sentence could not have been any lower because of a statutory minimum,” see United States v. Giacometti 28 F.3d

698, 704 (7th Cir. 1994). Ultimately, this court would have

to speculate that the district court’s error in thinking itself

bound by the guidelines did not affect the sentence.
No. 04-3398 9

The government next argues that the district court’s rejection of Schlifer’s motion for a downward departure under

§ 5K2.0 evinces its unwillingness to impose a lower sentence. This argument is unpersuasive because it appears

that the district court simply did not agree that Schlifer had

presented a permissible basis for departure under that

guideline. In denying Schlifer’s motion, the court determined

that the circumstances of his case were not “outside the

heartland.” Given this determination, the district court did

not have a solid basis to depart under § 5K2.0. Thus the

court’s denial of Schlifer’s motion sheds no light on whether

the court would have departed had Schlifer presented different grounds, or whether the court might have granted

the very same motion had it known that Booker effectively

allows greater latitude in making departure decisions.

Finally, the government makes the undeveloped argument

that the district court’s acknowledgment of Schlifer’s extensive criminal history reveals a disinclination to impose

a lesser sentence. The government provides no support for

this argument, and although the district court characterized

Schlifer’s criminal history as “horrendous,” it did so in the

context of explaining its decision to sentence him as a

career offender. Moreover, this court has acknowledged that

such comments are common at sentencing, and are not necessarily evidence that an error was harmless. See Jackson,

32 F.3d at 1110. Thus, the most that can be inferred from

the district court’s statement is that Schlifer’s criminal

history warranted sentencing under § 4B1.1.

The government ultimately fails to meet its burden of

demonstrating that, if the district court had known that the

guidelines are advisory rather than mandatory, its choice of

sentence would have been the same. While the result might

be different under a plain error standard, where the

defendant has the burden of demonstrating that his

substantial rights were affected, in this case the error

cannot fairly be deemed “harmless.”
10 No. 04-3398

III. CONCLUSION

For the reasons stated above, we VACATE Schlifer’s

sentence and REMAND the case to the district court with

instructions to resentence in light of Booker.

This opinion was circulated to the entire court before issuance. No member of the court in active service voted to hear

the case en banc.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-7-05