United States v. Walter

United States Court of Appeals

For the First Circuit

No. 04-1812

UNITED STATES OF AMERICA,

Appellee,

v.

MARKENO WALTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and DiClerico, Jr.,* District Judge.

David Shaughnessy, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, were on brief, for

appellee.

January 11, 2006

*

Of the District of New Hampshire, sitting by designation.

TORRUELLA, Circuit Judge. On June 19, 2003, a grand jury

sitting in the District of Massachusetts issued a five-count

indictment against Markeno Walter, a previously convicted felon.

Walter was indicted with evidence from two controlled purchases of

firearms arranged by the Western Massachusetts Gang Task Force

("Task Force"), a joint state-federal law enforcement initiative

headed by the FBI. The Task Force had set up the purchases between

Walter and a cooperating witness for the government named Terry

Brown, who also happened to be Walter's cousin.

The first purchase took place on June 28, 2002 in the

vicinity of Springfield, Massachusetts. On this occasion, Brown

gave Walter $400 in cash and received in return a Lorcin .380 semi-

automatic handgun that had its serial number removed, as well as

ammunition. Brown was equipped with a recording device and a

transmitter during this encounter, so the entire transaction was

recorded on tape. The meeting between Brown and Walter was also

videotaped by a member of the Task Force who was parked in a

surveillance van nearby. The second controlled purchase took place

on July 11, 2002 under similar circumstances. Brown, fitted with

a recording device and a transmitter and under video surveillance,

bought a .38 caliber revolver and ammunition from Walter for $400.

Using the confiscated weapons and ammunition, the

audiotapes and videotapes of the two transactions, and the

testimony of the various law enforcement officials involved in the

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controlled purchases, the government obtained its indictment in

June 2003. The indictment stated that Walter unlawfully possessed

firearms and ammunition that had traveled in interstate commerce,

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

Walter also unlawfully possessed a firearm with an obliterated

serial number, in violation of 18 U.S.C. § 922(k).

In November 2003, a trial commenced in the district court

during which Brown testified on behalf of the government against

Walter. After three days of deliberation, a jury indicated that it

could not reach a unanimous verdict, and a mistrial was declared.

In February 2004, a second trial began. This time, the government

did not call Brown as a witness, deciding instead to introduce the

audiotapes made during the controlled purchases. Also, during the

course of this second trial, Walter made a motion for a judgment of

acquittal pursuant to Fed. R. Crim. P. 29 on the grounds of

entrapment, which the district court denied. After deliberating,

a jury found Walter guilty on all five counts of the indictment.

On May 27, 2004, the district court, using the standards

set forth in the Armed Career Criminal Act ("ACCA") and the

Sentencing Guidelines, sentenced Walter to a term of imprisonment

of 188 months; to a term of five years of supervised release; and

to a $500 special assessment. In this appeal, Walter contests the

district court's admission of certain evidence, the court's denial

of his motion for a judgment of acquittal, and his sentence. After

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careful consideration, we vacate Walter's sentence and remand for

resentencing. On Walter's other claims, however, we affirm the

decision of the district court.

I. Evidentiary issues

We review the district court's evidentiary rulings for

abuse of discretion. Ramírez v. Debs-Elías, 407 F.3d 444, 449 (1st

Cir. 2005). "Within that rubric, however, we consider de novo

whether the strictures of the Confrontation Clause have been met."

United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir. 2005).

Walter's first claim is that he was deprived of his

rights under the Confrontation Clause of the Sixth Amendment when

the district court admitted into evidence Brown's taped statements.

This argument fails, however, because the statements by Brown that

were admitted had a nonhearsay purpose -- namely, they were offered

not for the truth of the matters asserted, but to provide context

for the admissions of Walter. The Supreme Court has held in

several instances that nonhearsay statements do not implicate the

Confrontation Clause. See United States v. Inadi, 475 U.S. 387,

398 n.11 (1986); Tennessee v. Street, 471 U.S. 409, 414 (1985).

That Brown's statements are to be characterized as

"nonhearsay" in this instance is clear. In several cases, we have

held that when statements are offered only to provide context and

not for the truth of the matter asserted, those statements are not

hearsay. See United States v. Catano, 65 F.3d 219, 225 (1st Cir.

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1995); United States v. McDowell, 918 F.2d 1004, 1007-08 (1st Cir.

1990). At trial, the taped conversations that were used by the

prosecution contained a number of admissions by Walter. Admissions

of a party are admissible under Fed. R. Evid. 801(d)(2)(A).

Brown's statements merely placed Walter's admissions in context.

For example, Brown's question to Walter about whether someone was

going to give the "thirty-eight" [i.e., a thirty-eight caliber

revolver] to Walter was admitted to provide context to the

following response by Walter: "Yeah, it's my gun, n*****!1 What

are you talking about?" Similarly, Brown's question to Walter

about whether Brown could get "both [guns] . . . for eight hundred"

was admitted to provide context to the following response by

Walter: "No, I really don't want to sell this one."

In McDowell, the defendant sought to bar the use of

certain tapes containing proof that he had aided and abetted

several other individuals in the commission of various drug

trafficking crimes. After noting that the defendant's own

statements could be used against him, we wrote that "a defendant,

having made admissions, [cannot] keep from the jury other segments

of the discussion reasonably required to place those admissions

into context." McDowell, 918 F.2d at 1007. The other parts of the

discussion "were properly admitted as reciprocal and integrated

utterance(s) to put [the defendant's] statements into perspective

1

Racial epithet omitted.

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and make them intelligible to the jury and recognizable as

admissions." Id. at 1007 (internal citations and quotation marks

omitted). Because such statements were introduced only to provide

context, they were not to be considered hearsay. In the instant

case, Brown's statements were also not being offered for the truth

of the matters asserted but rather served as "reciprocal and

integrated utterance(s)," reasonably required to place Walter's

admissions into context and "make them intelligible to the jury."

Id. (internal quotation marks omitted).

Our characterization of Brown's statements as

"nonhearsay" is significant for another reason. It provides an

answer to Walter's argument that the admission of Brown's

statements is contrary to the Supreme Court's decision in Crawford

v. Washington, 541 U.S. 36 (2004). In Crawford, the Court held

that testimonial hearsay is not admissible under the Sixth

Amendment unless the defendant had a prior opportunity for cross-

examination and the declarant is unavailable. Walter argues that

the district court erred in admitting the audiotapes containing

statements by Brown because the government did not establish that

Brown was unavailable. In fact, claims Walter, Brown was

available, but the government consciously chose not to call him as

a witness because he had engaged in egregious sexual misconduct

during the time he was acting as a cooperating witness.

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Walter's reliance on Crawford, however, is misplaced.

The Supreme Court in that case went to great lengths to distinguish

testimonial and nontestimonial hearsay. However, it also noted

that the Confrontation Clause "does not bar the use of testimonial

statements for purposes other than establishing the truth of the

matter asserted." Id. at 57 n.9. Crawford therefore does not call

into question this Court's precedents holding that statements

introduced solely to place a defendant's admissions into context

are not hearsay, and as such, do not run afoul of the Confrontation

Clause.

Walter's final challenge to the admissibility of this

evidence is that the district court erred because it did not issue

a limiting instruction advising the jury that it could use Brown's

statements only to provide context and not for substantive

purposes. See Fed. R. Evid. 105. Walter, however, never asked for

such a limiting instruction. As a result, he is not entitled to

argue here that the district court's failure to provide a limiting

instruction constitutes reversible error. Our precedents have made

this clear. See United States v. Murphy, 193 F.3d 1, 5 n.2 (1st

Cir. 1999) ("Of course, where a statement is offered for non-

hearsay uses, the defendant may be entitled to an instruction

limiting its use . . . but only if he asks for it."); United States

v. Cintolo, 818 F.2d 980, 999 (1st Cir. 1987) ("Although the trial

judge gave no limiting instruction . . . that is likely because the

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defendant never requested one. Having failed in this regard, [the

defendant] cannot now be heard to complain of any alleged omission

on the part of the district court in this wise."); Staniewicz v.

Beecham, Inc., 687 F.2d 526, 531 (1st Cir. 1982) ("[A]ppellant

waived any objection to the lack of instruction by his failure to

make a timely request for a limiting instruction."). We therefore

hold that Walter was not deprived of his rights under the

Confrontation Clause when the district court admitted into evidence

Brown's taped statements.

II. Entrapment

Walter next contends that the government did not properly

refute his claim that he had been entrapped. As a result, the

district court should have granted his motion for a judgment of

acquittal. We review de novo a district court's denial of a motion

for a judgment of acquittal. See United States v.

Cruzado-Laureano, 404 F.3d 470, 480 (1st Cir. 2005).

Entrapment is present "when the criminal design

originates with the officials of the Government, and they implant

in the mind of an innocent person the disposition to commit the

alleged offense and induce its commission in order that they may

prosecute." Sorrells v. United States, 287 U.S. 435, 442 (1932).

Using this definition, it is easy to see that there are two

necessary prongs to the entrapment defense: "government inducement

of the crime, and a lack of predisposition on the part of the

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defendant to engage in the criminal conduct." Matthews v. United

States, 485 U.S. 58, 63 (1988); United States v. Gamache, 156 F.3d

1, 9 (1st Cir. 1998); United States v. Rodríguez, 858 F.2d 809, 815

(1st Cir. 1988) (noting that "entrapment cannot occur unless both

elements coincide").

"[A] defendant is entitled to a jury instruction on

entrapment if there is record evidence which fairly supports the

claims of both government inducement of the crime and defendant's

lack of predisposition to engage in it." Rodríguez, 858 F.2d at

814. Here, the district court found that an entrapment instruction

was merited, telling the jury that the government could succeed on

the entrapment issue if it proved beyond a reasonable doubt that

either 1) there was no inducement; or 2) that the defendant was

predisposed. See id. at 815 (noting that "[o]nce the defense is

properly in the case, the government is obligated to prove beyond

a reasonable doubt that no entrapment occurred" and that "the

defense fails if the jury is persuaded beyond reasonable doubt that

either [element] is lacking in a particular case"). Walter argues

on appeal that the government failed to carry this burden. As a

result, his entrapment defense succeeded, and a judgment of

acquittal should have been entered as to all counts.

Alternatively, he argues that the district court should have found

as a matter of law that the government had failed to disprove

inducement. Therefore, the inducement prong of the entrapment

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defense was satisfied, and the district court should have withdrawn

that issue from the jury's consideration as he requested.

In evaluating Walter's claims, we must examine the two

prongs of the entrapment defense. First, we look at inducement.

Inducement may be found where the government goes beyond providing

an opportunity for the crime's commission and "creates a risk of

causing an otherwise unwilling person to commit the crime."

Gamache, 156 F.3d at 9; see also United States v. Gendron, 18 F.3d

955, 961 (1st Cir. 1994) (inducement "consists of an 'opportunity'

plus something else -- typically, excessive pressure by the

government upon the defendant or the government's taking advantage

of an alternative, non-criminal type of motive.").

Walter notes that exploitation of sympathy can amount to

improper inducement, pointing to the following decisions: Sorrells,

287 U.S. at 441 (sympathy among war veterans); Sherman v. United

States, 356 U.S. 369, 373 (1958) (playing upon defendant's sympathy

for informant's common narcotics experience and withdrawal

symptoms); and United States v. Montañez, 105 F.3d 36, 38-40 (1st

Cir. 1997) (sympathy for family circumstances). He argues that the

government exploited his sympathy by having Brown, his cousin,

claim that he was in danger from gang members and that he needed

guns for personal protection. In other words, Brown -- and by

extension, the government -- induced Walter to procure guns by

playing on his family sympathies and concerns for Brown's safety.

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As proof that Walter was motivated by these factors, he points to

an exchange on the June 28 tape in which Brown states, "I been

having some problems with . . . those gang motherfuckers," to which

Walter replies, "You ain't gonna have no problems now." Walter

further argues that the only admissible evidence pertaining to the

issue of inducement came from his own testimony and the tapes, both

of which supported his claims of improper government inducement.

He then cites to a number of cases that he claims, taken together,

stand for the proposition that a defendant's own unrebutted

testimony is sufficient to establish inducement as a matter of law.

In Masciale v. United States, 356 U.S. 386 (1958), the

Supreme Court noted that even if a defendant's testimony is not

disputed by a government witness, the defendant is not necessarily

entitled to an instruction of entrapment as a matter of law because

the jury might choose to disbelieve the defendant's testimony. Id.

at 388. That the jury could conceivably disbelieve Walter in this

instance is entirely within the realm of possibility. There was

ample evidence upon which a reasonable jury could have chosen to

disbelieve Walter's argument that the only reason he obtained

firearms for Brown was because Brown had taken advantage of

Walter's family sympathies. For example, the jury heard testimony

from Walter that, although he provided Brown with the .380 caliber

firearm on June 28, 2002, he brought a .25 caliber firearm with him

on that day for protection from Brown "b]ecause I didn't want him

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to -- I couldn't put that gun in his hand and just let him take it

from me. If he puts bullets in the gun he could have just took it

from me, you know what I'm saying." Given Walter's testimony that

he saw it necessary to arm himself for his meeting with Brown, a

reasonable jury could have chosen to disbelieve Walter's testimony

that the only reason he came into the possession of firearms was

for the altruistic purpose of helping Brown. Therefore, Walter's

alternative argument -- that inducement was established as a matter

of law and that therefore that issue should have been withdrawn

from the jury's consideration -- fails.

In addressing Walter's primary argument that the

government failed to carry its burden of proving that no entrapment

occurred, we again note that the government's burden is met if it

proves beyond a reasonable doubt that either element of the

defense, inducement or lack of predisposition, fails. Rodríguez,

858 F.2d at 815. Focusing on the predisposition prong, we think

that the government met its burden of proving that the defendant

was predisposed to possess the guns in question. The recorded

conversations between Walter and Brown contained numerous

admissions by Walter that show he was predisposed to possess

handguns and ammunition. The jury, for example, heard recorded

statements in which Walter mentioned that he knew how to file the

serial number off of a firearm and that he knew how to clean a .38

caliber revolver. We have previously held that evidence of

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predisposition may be inferred from conversations in which a

defendant displays knowledge or experience in the criminal activity

under investigation. See United States v. Panet-Collazo, 960 F.2d

256, 259-60 (1st Cir. 1992) (in tape-recorded conversations,

defendant stated that he had "worked with cocaine a lot"); United

States v. Tejeda, 974 F.2d 210, 218 (1st Cir. 1992) (informant

testified that defendant talked about going rate of cocaine).

Given Walter's admissions, a reasonable jury could easily have

decided that Walter was predisposed to possess handguns and

ammunition, including a handgun with an obliterated serial number.

The government therefore satisfied its burden and properly refuted

Walter's claim that he had been entrapped. As a result, we hold

that the district court was correct to deny Walter's motion for a

judgment of acquittal.

III. Sentencing

Walter's final challenge is to his sentence. Walter was

sentenced pursuant to the Armed Career Criminal Act ("ACCA"), 18

U.S.C. § 924(e). The ACCA establishes a 15-year (180-month)

mandatory minimum sentence for any person who violates 18 U.S.C.

§ 922(g) and has three prior convictions "for a violent felony or

a serious drug offense, or both, committed on occasions different

from one another." 18 U.S.C. § 924(e)(1). The district court

found that Walter satisfied this description. Walter was also

subjected to a further enhancement of his sentence under the then-

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mandatory United States Sentencing Guidelines § 4B1.4. The

mandatory minimum of the ACCA, combined with the application of the

Sentencing Guidelines, resulted for Walter in a total sentencing

range of between 188 and 235 months. The district court opted for

the low end of this range and settled on a sentence of 188 months.

Walter here contests both the ACCA and Sentencing Guidelines

portions of his sentence.

A. ACCA

As to Walter's sentencing under the ACCA, his eligibility

under the statute was dependent on three prior convictions for a

"violent felony" or "serious drug offense," "committed on occasions

different from one another." 18 U.S.C. § 924(e). The district

court sentenced Walter as an Armed Career Criminal based on his

three prior drug convictions and a manslaughter conviction. These

four crimes, mentioned in the presentence report ("PSR"), were

considered the necessary ACCA predicates. Walter contends,

however, that the district court misused the PSR to determine his

ACCA status. Had the district court correctly used the PSR, he

claims, it would have found only two ACCA predicates, rendering

§ 924(e) inapplicable.

Walter bases his argument on the Supreme Court's opinions

in Taylor v. United States, 495 U.S. 575 (1990), and United States

v. Shepard, 125 S. Ct. 1254 (2005). In Taylor, the Supreme Court

held that, in determining whether a crime constitutes a violent

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felony under the ACCA, a sentencing court must take "a formal

categorical approach, looking only to the statutory definitions of

the prior offenses, and not to the particular facts underlying

those convictions." Taylor, 495 U.S. at 600. In Shepard, the

Court held that "Taylor's reasoning controls the identification of

. . . convictions following pleas, as well as convictions on

verdicts." Shepard, 125 S. Ct. at 1259. As a consequence, when

determining whether a prior conviction resulting from a guilty plea

is a violent felony for purposes of the ACCA, a court is limited to

an examination of the language of the statute of conviction, "the

terms of the charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant . . . or to some

comparable judicial record of this information." Id. at 1263.

In light of these holdings, Walter argues that the

district court's use of the PSR was incorrect. In particular, he

points to two of the drug offenses that were counted by the

district court as ACCA predicates. He argues that two of these

offenses were disposed of on the same day, and it is only from the

PSR's review of the pertinent police reports -- in violation of

Taylor and Shepard -- that the court concluded that the two

offenses were committed on separate occasions. If these two crimes

were not in fact committed on separate occasions -- a question that

cannot be answered based solely on the record analysis permitted

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under Shepard -- then they only count as one predicate, bringing

the total to three.

Walter then combines this argument with one stating that

his manslaughter conviction should also be disqualified as an ACCA

predicate because, under the record analysis mandated by Taylor and

Shepard, it was impossible for the district court to determine

whether his manslaughter conviction qualified as a "violent felony"

under the ACCA. Normally, a court is required to "look only to the

fact of conviction and the statutory definition of the prior

offense" to determine whether it is a predicate offense under the

ACCA. Taylor, 495 U.S. at 602. However, in this case, Walter

notes that "the basis for the court's sentence was a presentence

report that 1) did not include the source of its information

concerning the prior conviction; 2) did not include official copies

of those prior convictions; and 3) did not include citations to

specific criminal statutes." Specifically, Walter states that

"[t]he PSR identifies a 'manslaughter' conviction but does not cite

to a statute, nor does it say whether the conviction was for

involuntary or voluntary manslaughter." Walter notes that "[t]here

is a single manslaughter statute in Massachusetts" which "covers

both voluntary and involuntary manslaughter," including conduct

involving recklessness. Since, Walter argues, involuntary

manslaughter includes offenses which should not be considered

"violent felonies," his manslaughter conviction cannot be

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considered a predicate offense under the ACCA. Thus, if Walter's

two arguments -- about his drug convictions and his manslaughter

conviction -- have merit, there are only two ACCA predicates, and

§ 924(e) is rendered inapplicable.

Even assuming that Walter is correct about the use -- or

rather, misuse -- of his drug convictions, we believe that the

district court correctly determined that Walter's manslaughter

conviction qualified as an ACCA predicate. Because Walter did not

raise this issue below, our review is for plain error. "To prevail

under this standard, [Walter] must show that (1) an error occurred,

(2) the error was clear or obvious, (3) the error affected his

substantial rights, and (4) the error also seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

United States v. Wiggin, 429 F.3d 31, 38 (1st Cir. 2005) (citing

United States v. Olano, 507 U.S. 725, 732, 734 (1993)).

Under the ACCA, a prior conviction is for a "violent

felony" if the prior offense was "punishable by imprisonment for a

term exceeding one year . . . [and] . . . involves conduct that

presents a serious potential risk of physical injury to another."

18 U.S.C. § 924(e). The Massachusetts manslaughter statute

provides:

Whoever commits manslaughter shall, except as

hereinafter provided, be punished by

imprisonment in the state prison for not more

than twenty years or by a fine of not more

than one thousand dollars and imprisonment in

jail or a house of correction for not more

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than two and one half years. Whoever commits

manslaughter while violating the provisions of

sections one hundred and one to one hundred

and two B, inclusive, of chapter two hundred

and sixty-six shall be imprisoned in the state

prison for life or for any term of years.

Mass. Gen. Laws ch. 265, § 13 (2005). The statute does not

distinguish between voluntary and involuntary manslaughter;

therefore, both offenses are punishable by imprisonment for a term

exceeding one year.

Furthermore, under Massachusetts common law, both

involuntary and voluntary manslaughter appear to "involve conduct

that presents a serious potential risk of physical injury to

another." "Involuntary manslaughter is an unintentional killing

resulting from wanton and reckless conduct or a battery not

amounting to a felony which the defendant knew or should have known

endangered human life." Commonwealth v. DeMarco, 830 N.E.2d 1068,

1073 (Mass. 2005) (internal quotation marks omitted).

"[I]nvoluntary manslaughter involves a high degree of likelihood

that substantial harm will result to another." Commonwealth v.

Lyons, 828 N.E.2d 1, 6 (Mass. 2005) (internal quotation marks

omitted). "Voluntary manslaughter is an unlawful killing which

occurs in circumstances which negate the element of malice."

Commonwealth v. Squailia, 706 N.E.2d 636, 642 (Mass. 1999).2

2

Notably, other circuits have found that manslaughter constitutes

a violent felony for purposes of the ACCA. See United States v.

Sanders, 97 F.3d 856, 859-60 (6th Cir. 1996) (holding that

conviction under Ohio's involuntary manslaughter statute is a

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Thus, manslaughter, under Massachusetts law, is a violent

felony within the meaning of the ACCA as a matter of law. In light

of this conclusion and both parties' arguments on appeal that the

Massachusetts manslaughter statute applies in Walter's case, Walter

is unable to show any "plain error" by the district court. Given

this holding, the three required ACCA predicates were present. We

therefore decline to address the merits of Walter's alternative

argument -- that it was impossible for the district court to

determine whether two of his drug convictions were committed on

different occasions -- and hold that the ACCA portion of Walter's

sentence was correct.

B. Sentencing Guidelines

As to the Sentencing Guidelines portion of his sentence,

Walter points out that he was sentenced prior to the Supreme

Court's decision in United States v. Booker, 543 U.S. 220 (2005).

Since the district court sentenced him under a mandatory Guidelines

regime, he argues that he is entitled to resentencing in

"violent felony" conviction under the ACCA because it "'involves

conduct that presents a serious potential risk of physical injury

to another.'"); United States v. Williams, 67 F.3d 527, 528 (4th

Cir. 1995) (involuntary manslaughter under South Carolina's

involuntary manslaughter statute is a "violent felony" under the

ACCA because that statute proscribes "[c]onduct that involves 'the

reckless disregard for the safety of others' (and which results in

someone's death) [and thus] clearly presents a 'serious potential

risk of physical injury to another'"); United States v. Lujan, 9

F.3d 890, 892 (10th Cir. 1993) (concluding that manslaughter under

California law is a "violent felony" under the ACCA because it has

the element of the use, attempted use, or threatened use of

physical force).

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conformance with Booker. See United States v. Antonakopoulos, 399

F.3d 68, 75 (1st Cir. 2005) ("The Booker error is that the

defendant's Guidelines sentence was imposed under a mandatory

system."). In evaluating this argument, we first note that

Walter's claim of Booker error is unpreserved. In Antonakopoulos,

we stated that a Booker error is preserved only "if the defendant

below argued Apprendi or Blakely error [referring to Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542

U.S. 296 (2004)] or that the Guidelines were unconstitutional."

Antonakopoulos, 399 F.3d at 76. Walter did neither in this case

and acknowledges that his claim of Booker error here is

unpreserved.

We therefore review Walter's Booker claim for plain

error. Id. at 75. In Antonakopoulos, we stated what is required

in plain error review:

[F]or the court of appeals to notice and

correct an error not objected to in the

district court, there must be an "error" that

is "plain" and that "affects substantial

rights." If those three factors are all met,

the court of appeals then has discretion to

correct the error only if it seriously affects

the fairness, integrity or public reputation

of judicial proceedings.

Id. at 77 (internal quotation marks and citations omitted). We

also noted that the first two prongs of the test are automatically

satisfied whenever the defendant's Guidelines sentence was imposed

under a mandatory Guidelines system. Id. Given that Walter was

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sentenced under a mandatory Guidelines regime, we turn our

attention to the remaining two prongs of the test -- that the error

affect substantial rights, and that discretionary action by this

court is necessary because the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

To satisfy these final two prongs of the plain error

test, we have held that "the defendant must point to circumstances

creating a reasonable probability that the district court would

impose a different sentence more favorable to the defendant under

the new 'advisory Guidelines' Booker regime." Id. at 75. This is

not a heavy burden. In United States v. Heldeman, 402 F.3d 220

(1st Cir. 2005), we stated that "we are inclined not to be overly

demanding as to proof of probability where, either in the existing

record or by plausible proffer, there is reasonable indication that

the district judge might well have reached a different result under

advisory guidelines." Id. at 224.

We believe that Walter has satisfied this burden here.

He points to how the district court judge "unequivocally signaled

his displeasure with the severity of the mandatory sentencing

enhancements he felt obliged to apply." In United States v.

Jiménez, 419 F.3d 34 (1st Cir. 2005), we encountered a defendant

who made a nearly identical showing. We rejected the defendant's

claim, however, noting that although the district judge made a

number of comments that indicated that he "might have imposed a

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more lenient sentence if the Guidelines had been advisory at that

time," the judge also made an explicit statement that even if he

had the discretion to depart downwards given the defendant's

"heartbreaking" family circumstances, he would not exercise that

discretion. Id. at 46. Such a statement, we held, was fatal to

the defendant's Booker claim.

In this case, however, such a statement by the sentencing

judge was completely absent. Here, Judge Ponsor -- the same

district judge as in Jiménez -- only made statements indicating

that he would likely have imposed a more lenient sentence if given

the option to do so. He stated:

It's a very grim responsibility to have to

consider the appropriate sentence in this case

because of the impact of the Sentencing

Guidelines and the mandatory sentences in this

case, a mandatory sentence in this case . . .

It's a terribly, terribly onerous sentence and

I don't think there's anything to be said

about it other than that it is an

extraordinarily heavy sentence to be looking

at in this case. . . . But as I understand it,

and I've looked at the presentence report very

carefully, that the court is without

discretion based upon the Sentencing

Guidelines and the statutes passed by Congress

to impose a sentence below the 188 to 235

month range. That is my understanding of the

limitations of my discretion here this

afternoon. . . . I know that the defendant has

had a difficult life in a number of ways,

particularly being raised by his grandmother

and his aunt. . . . I know that he has a

relationship with a woman right now and

actually had been not having any trouble since

1995 or so, or '96 or so. . . . On the other

hand, he has these prior convictions and the

jury made its decision that he was guilty of

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these crimes, and I think my responsibility is

to impose the sentence at the very lowest end

of the guideline range.

In other words, the district judge commented that Walter's sentence

was "terribly, terribly onerous" and "extraordinarily heavy"

without providing any sort of limiting statement as he did in

Jiménez.

The government argues that in making these statements

about the weightiness of the sentence, the district judge was

referring to the sentence as a whole, not simply the eight-month

difference between the 180-month mandatory minimum under the ACCA

and Walter's ultimate sentence of 188 months. Although the

government is technically correct in that the comments of Judge

Ponsor relate to the severity of the sentence as a whole, we think

it likely -- from the tenor of the judge's comments, his overt

sympathy for the defendant's circumstances, and the absence of any

statement that he would withhold his exercise of discretion in this

case -- that he would have sentenced Walter more leniently had he

not been bound by the Guidelines. For example, he might only have

imposed the mandatory minimum under the ACCA and imposed no

additional sentence under the Guidelines. Alternatively, he may

have added a few additional months to the mandatory minimum, but

not so many months that the total sentence would extend to 188

months. Regardless of whether Judge Ponsor actually would have

taken any of these steps, Walter now at least deserves to be

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sentenced by a judge who has the latitude to make such sentencing

adjustments if he so desires. As we noted in Heldeman, "it will be

easy enough for the district judge on remand to say no with a

minimum expenditure of effort if the sentence imposed under the

pre-Booker guidelines regime is also the one that the judge would

have imposed under the more relaxed post-Booker framework."

Heldeman, 402 F.3d at 224. We therefore vacate Walter's sentence

and remand for resentencing.

IV. Conclusion

For the reasons set forth above, we vacate the decision

of the district court regarding Walter's sentence and remand for

further proceedings consistent with this opinion. The judgment of

the district court is affirmed as to Walter's other claims.

Affirmed in part, and vacated and remanded in part.

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