Monday, August 10, 2009

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.

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