United States v. Chalmers Brown

RONALD LEE GILMAN, Circuit

Judge, concurring.

Like my colleagues, I agree that the district court’s Booker error in sentencing Brown was harmless. I nevertheless write separately because this court has not previously considered whether a discretionary upward departure can render a Booker error harmless, and I believe that the issue warrants further analysis.

Although the district court below applied the Guidelines under the former mandatory regime, it also considered Brown’s initial Guidelines range of 168-210 months as insufficient to account for his criminal history. It therefore departed upward by four sentencing levels in light of Brown’s “long record ... of violent crimes,” resulting in a Guidelines range of 262-327 months. As a result, the district court ultimately determined that a sentence of 280 months was the most appropriate sentence based upon the type of factors enumerated in 18 U.S.C. § 3553 (a). The Booker error was thus nullified when the district court departed upward.

Cases from other circuits support this conclusion. In United States v. Martinez, 418 F.3d 1130, 1136 (10th Cir.2005), for example, the Tenth Circuit held that “[a]l-though the district court may have erred by applying the Guidelines in a mandatory fashion, the error was harmless” because the district court imposed a discretionary upward departure based on the defendant’s repeated violations. The Martinez court held that the district court, by exercising its discretion, left the appellate court with no “reason to think that the district court would have imposed a less severe sentence in the exercise of his post- Booker discretion.” Id.; see also United States v. Ben, 152 Fed.Appx. 414, 416 (5th Cir.2005) (unpublished) (holding that the government met its burden of showing harmless error where the district court had concluded that the defendant’s criminal history was underrepresented and had imposed an upward departure as a result).

Although other circuits have addressed this issue, the Sixth Circuit has no case discussing whether an upward departure makes a Booker error harmless. Several of our cases, however, have discussed the effect of an upward departure in the Booker plain-error context. One of these is United States v. Webb, 403 F.3d 373, 382-83 (6th Cir.2005), cert. denied — U.S. -, 126 S.Ct. 1110 , 163 L.Ed.2d 919 (2006), where this court affirmed Webb’s conviction and held that the presumption of prejudice established in the plain-error context by United States v. Barnett, 398 F.3d 516, 527-29 (6th Cir.2005), was overcome by clear and convincing evidence. The Webb court reasoned that because the district court referred to Webb as a menace, considered (but did not impose) an upward departure, and sentenced him at the top of the Guidelines range, the district court would not have imposed a lesser sentence even if it had considered the *524 Guidelines to be advisory only. Id.; see also United States v. Loggins, 136 Fed.Appx. 789 (6th Cir. June 6, 2005) (unpublished) (holding that the Barnett presumption was overcome by clear and convincing evidence where the district court labeled the defendant a “professional thief’ and imposed an upward departure because it considered the initial Guidelines range inadequate).

The analysis from Webb and Loggins is helpful, even though the present case requires a harmless-error inquiry rather than a plain-error inquiry. Those cases make clear that despite the district court’s belief that the Guidelines were mandatory, the record in a particular case may indicate that the district court “would have imposed the same sentence, if not a lengthier one, ... had the district court known that it was not bound by the Guidelines.” Webb, 403 F.3d at 383 .

The government argues in the present case that any Booker error was harmless because “the sentence imposed was just and reasonable,” and because it was based on Brown’s history of recidivism and the violent nature of his crimes. Evidence in the record supports the government’s contention. As the government argues, the district court concluded that Brown’s “criminal history category significantly underrepresent[ed] both the seriousness of [his] criminal history and the likelihood that he [would] commit further crimes,” and the district court detailed at length Brown’s history of violent offenses. The court also referred to Brown’s “remarkable” level of recidivism, noted that it did not anticipate that Brown would be able to change his violent behavior, and determined that 280 months of imprisonment was the most appropriate sentence under the circumstances.

Because the district court imposed the upward departure after deciding that the Guidelines-recommended sentence was inadequate, the Booker error in this case was harmless. The district court sentenced Brown to 280 months of imprisonment because it thought the sentence appropriate, not because it felt constrained by the Guidelines. I therefore concur in affirming its judgment.