Fives Clarify Harmlessness Analysis of Guidelines Calculation Error

United States v. Ibarra-Luna, No. 09-40768 (5th Cir. Dec. 22, 2010) (Higginbotham, Clement, Owen)

Been wondering just when an error in calculating the advisory Guidelines range requires reversal?  Today is your lucky day:

Today we address whether a sentence may be upheld if an error in the calculation is shown to be harmless. We hold that under the discretionary sentencing regime of Booker and progeny, the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing. On the facts before us, we conclude that this high hurdle has not been cleared and remand for resentencing.

Guess we better look at the facts here, then.
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Nice Opinion on Error Preservation and Harm In Appeal From Erroneous Guidelines Calculation

United States v. Neal, No. 08-30693 (5th Cir. Aug. 7, 2009) (Wiener, Garza, Elrod)

You'll want to keep this opinion handy, in case you get into a battle over whether an objection to a sentencing error was properly preserved in the district court. It's also a nice go-to for harm arguments when the district court miscalculated the advisory Guidelines range.

As the court recounted the facts,

Police officers responded to a domestic disturbance call at Neal’s apartment. Upon arrival, Neal’s estranged girlfriend informed the officers that Neal was in possession of illegal drugs. Neal consented to a search of his apartment, and the officers discovered (1) two firearms in the bedroom closet and (2) undetermined amounts of cocaine, ecstacy, hydrocodone, and marijuana elsewhere in the apartment.

After pleading guilty in state court to possession of hydrocodone, Neal pleaded guilty in federal court to being a felon in possession of firearms. Enter the probation officer, who contended that Neal was subject to a heightened offense level under the armed career criminal guideline (§4B1.4(b)(3)(A), (c)(2)), on the ground that “the defendant possessed the firearms along with controlled substances, therefore the defendant is deemed to have used or possessed the firearms in connection with a crime of violence or a controlled substance offense.” Neal objected, but the district court adopted the probation officer's recommended calculations and imposed a sentence at the bottom of the resulting 188- to 235-month Guidelines range.

Neal appealed. As is often the case, the court had to first resolve a dispute over whether Neal had preserved error. The discussion is important not only because it finds Neal's relatively spare objection sufficient to preserve error, but also because of some great language addressing the effect of a district court's misunderstanding of, or failure to respond to, an objection.

To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000). Here, Neal raised the following complaint in his written objections to the PSR:

"2. Page 4 ¶ 20, defendant objects to the Probation Office’s finding that, pursuant to U.S.S.G. § 4B1.4(A), defendant should be considered an armed career criminal in that he used or possessed a firearm or ammunition in connection with a crime of violence or controlled substance offense as defined in U.S.S.G. § 4B1.2(A). Weapons found in Mr. Neal’s residence were not used nor were they possessed in connection with a crime of violence or controlled substance offense."

The government contends that this objection was too general to preserve error, as Neal never specifically alleged that simple possession of drugs fell outside the Guidelines definition of a “controlled substance offense.”

The government notes that the district court construed Neal’s written response as objecting solely to the proximity of the drugs, i.e., to whether the firearms found in the bedroom closet were possessed “in connection with” the drugs found elsewhere in the apartment. The government faults Neal for failing to clarify the basis of his objection after the district court’s initial response.

While Neal could certainly have been more clear and more persistent in raising an objection based on the definition of “controlled substance offense,” we conclude that his actions were sufficient to preserve error. For preservation purposes, we have never required a defendant to reiterate an objection simply because the trial court misconstrues or fails to respond to the original. The central inquiry is the specificity and clarity of the initial objection, not the defendant’s persistence in seeking relief. See Medina-Anicacio, 325 F.3d at 642 (“[O]nce a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal.”).

Here, it is sufficiently clear that Neal objected to his possession conviction being deemed a “controlled substance offense.” The second paragraph of Neal’s written response to the PSR, set forth supra, specifically objects to the PSR’s finding that the firearms were possessed in connection with a “controlled substance offense,” and cites to the relevant definitions section of the Guidelines for support. While the district court may have subsequently focused its analysis on the spatial relationship between the drugs and the firearms, we note that Neal raised this “proximity” objection explicitly and separately in the first paragraph of his written response. As such, it is reasonable to infer that the second paragraph was intended to raise a different objection, one based on the definition of a “controlled substance offense.” Moreover, during the sentencing hearing, Neal emphasized that his “predicate offense” was simple possession of a small amount of hydrocodone. While this statement standing alone may have been insufficient, we conclude that the combination of Neal’s oral and written objections was sufficient to preserve error in this case. See Ocana, 204 F.3d at 589.

Thus, de novo review of the Guidelines calculation, which was an easy one. A "controlled substance offense," for purposes of the armed career criminal guideline, does not include simple possession. There was no finding or evidence that Neal possessed the drugs with intent to distribute, dispense, etc., so application of the enhanced offense level and criminal history category was erroneous.

But was there harm? Yes. Without the enhancement, Neal's advisory Guideline range would have been 180 to 188 months, rather than the 188- to 235-month range calculated by the district court.

Where, as here, the district court commits a significant procedural error such as miscalculating the Guidelines range, we must vacate the sentence unless the error did not affect the selection of the sentence imposed. Delgado-Martinez, 564 F.3d at 753. The proponent of the sentence has the burden of establishing that the error was harmless. Id. Here, the government notes that Neal’s 188-month sentence falls within both the correctly and incorrectly calculated ranges. However, “[w]hile the fact that the actual sentence falls within the properly calculated Guidelines range may at times be relevant to the harmless-error inquiry, it is not dispositive.” Id. Based on our independent review of the record, we find no indication that the district court would have imposed the same sentence regardless of the Guidelines range. Accordingly, we cannot conclude that error was harmless and must remand. See id. at 754.

Hence vacation and remand.

Guidelines Calculation Error Doesn't Require Reversal If Sentence Didn't Result From That Error, Plus More on Plain Error

United States v. Ruiz-Arriaga, No. 08-40242 (5th Cir. Apr. 9, 2009) (Jones, Wiener, Benavides)

We know that, when imposing sentence, the district court must correctly calculate the advisory Guidelines range. Let's say the court gets the Guidelines calculation wrong, but says something along the lines of, "Even if the Guidelines range was different, I would still impose a sentence of X months, for the following reasons . . . ." Does the procedural error require vacation of the sentence?

Not necessarily. The Fifth Circuit recently clarified that a procedural error does not require reversal if the error was harmless, meaning that the error did not affect the sentence imposed. That's essentially what Ruiz-Arriaga holds, although it couches the matter in slightly different terms.

In this case, Ruiz pleaded guilty to illegal reentry. He had a prior Texas conviction for sexual assault of a child. The PSR recommended a 16-level COV enhancement for that prior conviction, producing an advisory range of 46 to 57 months. Ruiz objected to the enhancement (the details of which the opinion doesn't explain), arguing that the correct range was 10 to 16 months (presumably based on treating the sexual assault prior as a 4-level "any other felony" under §2L1.2(b)(1)(D), although the opinion doesn't explain that, either). The district court overruled the objection and sentenced Ruiz to 46 months, explaining that,

in the event that the court is incorrect about the guideline range, that a sentence at certainly something more than 10 to 16 months, which if the court were wrong is what—I haven’t recalculated, but that’s what [defense counsel] says would be the range. The court believes that a sentence of 46 months in custody would be reasonable, even if the court is not correct about the guideline range.

Ruiz appealed. Without addressing whether the district court erred in applying the 16-level enhancement, the court of appeals concluded that any error was harmless:

As we noted in United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008), “[n]ot all errors in determining a defendant’s guideline sentence require reversal.” Id. at 656. Where the district court “considered the possible guideline ranges that might apply to the defendant with and without a disputed enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A),” and otherwise explains its sentence in terms of 18 U.S.C. § 3553, the resulting sentence does not result from an incorrect application of the Guidelines. Id. Here, the district court considered the 46 to 57-month range with the crime of violence enhancement and the 10 to 16-month range advocated by the defense.

Of course, this brings up the question of just how much 3553 explanation is necessary to avoid a causal link between a Guidelines-calculation error and the sentence imposed. It must be more than the above quote from the district court, because the opinion also mentions that "[d]uring the sentencing hearing, the district court stated that it had considered the non-enhancement range offered by the defense and would have imposed the same sentence independently of the Guidelines in light of the seriousness and recent nature of the statutory rape conviction." So an explanation stating simply that "this court would impose the same sentence even if it is wrong about the applicable Guidelines calculation" shouldn't cut it. The district court must still address the defendant's argument, and provide 3553-based reasons for the alternative non-Guidelines sentence.

And in keeping with a recent theme, the opinion offers another sign that the Fifth Circuit is getting stricter about plain error review. Although Ruiz argued in the district court that the correct advisory range was 10 to 16 months, he argued on appeal that it was actually 8 to 14 months due to an error in the criminal history calculation. As Ruiz didn't make the argument below, plain error review applied. Quoth the court:

First, we cannot attribute “plain” error to a district court decision when defense counsel affirmatively represented to the district court a sentencing range that appellate counsel now disavows. Trial counsel’s misstatement essentially waives the argument for any other sentencing range in this appeal. It is well established that appellate courts may correct errors of law under a plain standard where trial counsel simply stood mute at sentencing and failed to object to the PSR. . . . This is because a “plain” error is one that the district court, in its oversight of sentencing, should have been alert to correct. Sentencing under the Guidelines is so complex, however, that the court should not be faulted for “plain” error when counsel’s affirmative statements allay any possible concern.

(emphasis added). Plus, no prejudice: "It is hardly likely that the court would have responded differently to a two month difference in range when it so clearly rejected the slightly higher range."

Claim That Jury Instructed On Multiple Theories May Have Found Guilt On Invalid One Is Subject to Harmless Error Review

Hedgpeth v. Pulido, No. 07-544 (U.S. Dec. 2, 2008) (per curiam)

The opening paragraph of today's opinion from the Supreme Court sums up the decision tidily:

A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. See Stromberg v. California, 283 U. S. 359 (1931); Yates v. United States, 354 U. S. 298(1957). In this case the Court of Appeals for the Ninth Circuit held that such an error is "structural error," requiring that the conviction be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant. The parties now agree that the Court of Appeals was wrong to categorize this type of error as "structural." They further agree that a reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507 U. S. 619, 623 (1993) (internal quotation marks omitted). We agree as well and so hold.

Thus, a remand for the Ninth Circuit to conduct harmless error review.

Justice Stevens dissented, joined by Justices Souter and Ginsburg. They argued that the decision below should be affirmed because the Ninth Circuit in fact conducted harmless error review, notwithstanding that court's misuse of the term "structural error."

Additional analysis is available at SCOTUSblog and the Volokh Conspiracy.

Defendant's Stipulation to Offense Elements In Bench Trial Renders Harmless Any Error In Denial of Suppression Motion

United States v. Garcia-Ruiz, No. 07-51269 (5th Cir. Oct. 27, 2008) (Jones, Garwood, Smith)

Although nominally about harmless error in the appeal of a denied suppression motion, this case is really more about sentencing. More specifically, how do you preserve a suppression issue for appeal and still get credit for acceptance of responsibility at sentencing? Although it doesn't guarantee acceptance, a conditional plea is the obvious option. But what if the Government or the court won't agree to proceed that way, forcing you to go to trial?

Here Garcia, who was charged with illegal reentry, sought to suppress all evidence obtained as a result of his warrantless detention and arrest. After the district court denied the motion, Garcia proceeded with a bench trial at which he stipulated to facts sufficient to establish all of the elements of illegal reentry, including facts supported by the evidence that he tried to suppress. The district court found the stipulation sufficient to prove the offense, and found Garcia guilty.

Garcia appealed the denial of his suppression motion, but the court didn't address the merits, instead holding that "even if, arguendo, the district court erred in its ruling, the error is rendered harmless by the fact that Garcia-Ruiz stipulated to facts that easily established his conviction beyond a reasonable doubt, as the district court found." As the court explained,

To convict Garcia-Ruiz under § 1326(1), the government needed to prove beyond a reasonable doubt that he was an alien at the time of the indictment, that he had previously been removed from the United States, that he was found in the United States after his removal, and that he had not received the consent of the Attorney General or Secretary of Homeland Security. Garcia-Ruiz stipulated to all those facts, and he and his attorney signed the stipulations and a waiver of jury trial. With such stipulations in place, any decision by this court regarding the suppression hearing could not affect Garcia-Ruiz’s posture in the district court, because he stipulated to the elements needed for conviction. Thus, when Garcia-Ruiz and the government agreed to the stipulated facts that established all the elements of the offense, any eror on the suppression issue would have no effect on the legal soundness of the conviction. In other words, to establish Garcia-Ruiz’s guilt, the government no longer needed the evidence he claims should have been suppressed.

The court distinguished Garcia's appeal from United States v. Mendoza, 491 F.2d 534 (5th Cir. 1974), in which the court considered the merits of an appeal of a denied suppression motion after a stipulated bench trial. Garcia-Ruiz emphasized that, in Mendoza, the defendants '"sought to expressly reserve their right to appeal from the order denying the motion to suppress.'" (quoting Mendoza). A quick glance at Mendoza reveals that the defendants chose that approach for pretty much the same reason a defendant would want to in the Guidelines era: they wanted to preserve the suppression issue for appeal, but "[a]t the same time, all three defendants [did] not desire to unnecessarily prolong the proceedings." Id. at 536 (quoting signed stipulation).

You'll have to decide for yourself whether the Mendoza approach will still fly these days, as well as whether a "Mendoza stipulation" will get you acceptance. In making that decision, consider the fact that conditional guilty pleas were not allowed in the Fifth Circuit at the time of Mendoza. See id. at 536 (discussing United States v. Sepe, 486 F.2d 1044, 1045 (5th Cir. 1973) (en banc; per curiam)). Rule 11 did not expressly authorize conditional guilty pleas until 1983. See 1A Wright, Federal Practice and Procedure-Criminal § 174.

It's clear, though, that a "naked stipulation" without a reservation of appellate rights will not, as a practical matter, preserve your suppression issue. (In a footnote, the court opines, in dictum, "that Garcia-Ruiz’s decision to go to trial on stipulated facts can be viewed as waiver as an alternate ground to harmless error." The court declined, though, to characterize it as a mootness question, as an earlier unpublished Fifth Circuit opinion had done.) So you'll need to weigh that in the preservation/acceptance calculus.