United States v. Christopher Michael James , 144 F. App'x 52 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-10442
U .S . COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ August 12, 2005
THOMAS K. KAHN
D. C. Docket No. 04-00196-CR-4 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER MICHAEL JAMES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 12, 2005)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Christopher Michael James, through counsel, appeals his 51-month sentence
for bank robbery, in violation of 18 U.S.C. § 2113(a). On appeal, James argues
that, in light of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), the district court committed plain error by applying the Sentencing
Guidelines in a mandatory, as opposed to advisory, fashion. Accordingly, James
maintains that he is entitled to have his case remanded to the district court for re-
sentencing consistent with Booker. The government concedes that remand is
appropriate.1
Because James failed to make any objection regarding the mandatory
application of the Federal Sentencing Guidelines, we review only for plain error.
United States v. Rodriquez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied,
___ S.Ct. ___ (June 20, 2005). In order for us to correct plain error: (1) there must
be error, (2) the error must be plain, and (3) the error must affect substantial rights.
Id. We have indicated that in applying the third prong of plain error review, the
proper question is “whether there is a reasonable probability of a different result if
the guidelines had been applied in an advisory instead of binding fashion by the
sentencing judge in this case.” Id. “If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the
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We applaud and appreciate the candor of counsel for the government.
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error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted). We have recognized that “the plain error
test is difficult to meet,” and that “the plain error rule places a daunting obstacle
before the appellant.” Id. (alterations and quotations omitted).
In order to decide the issue presented by James, we must review the
Supreme Court’s recent decision in Booker, in which the Supreme Court concluded
that the mandatory nature of the Guidelines implicated the Sixth Amendment right
to a jury trial. 543 U.S. ___, 125 S.Ct. at 756. In a second and separate majority
opinion, the Court held that to best preserve Congressional intent, the appropriate
remedy was to sever and excise the following two provisions of the Sentencing
Reform Act (“the Act”): 18 U.S.C. § 3553(b)(1) (making the Guidelines mandatory
and binding on federal courts), and 18 U.S.C. § 3742(e) (establishing appellate
standards of review), 543 U.S. at ___, 125 S.Ct. at 764. By severing these two
provisions, the Supreme Court made the Guidelines “effectively advisory.” Id.
In this case, the court sentenced James to 51 months imprisonment but
immediately thereafter made these comments:
I wish that I did not have to give this sentence today,
particularly in light of James’s clean criminal record,
his status as a college student, and the fact that he did
not abuse alcohol or drugs.
(R.2 at 40).
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The sentencing judge continued to express his dissatisfaction with the
Federal Sentencing Guidelines and the fact that he had so little or no discretion in
arriving at an appropriate sentence for the individual involved.
Based upon this record, as well as the parties’ respective briefs, we hold that
the district court’s application of the Guidelines as mandatory was an error that is
plain under the first two prongs of the plain-error test. See United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005). James can satisfy the third
prong of the test because comments made by the district court indicate that James
would have received a lesser sentence had the Guidelines been merely advisory.
Likewise, the district court’s comments indicating its desire to impose a lesser
sentence establish the fourth prong of the plain error analysis because failure to
notice the forfeited error would leave James with a sentence that the district did not
want to impose. See Shelton, 400 F.3d at 1333-34. Accordingly, we vacate
James’s sentence and remand this case to the district court for re-sentencing
consistent with Booker.
VACATED AND REMANDED.
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