United States v. Bourgeois , 127 F. App'x 512 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2203
UNITED STATES OF AMERICA,
Appellee,
v.
JASON BOURGEOIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Michael J. Iacopino and Brennan Caron Lenehan & Iacopino on
brief for appellant.
Thomas P. Colantuono, United States Attorney, and Peter E.
Papps, Assistant U.S. Attorney, on brief for appellee.
April 18, 2005
Per Curiam. Defendant, Jason Bourgeois, appeals from a
criminal sentence imposed before the United States Supreme Court's
recent decision in United States v. Booker, 125 S. Ct. 738. Booker
rendered the United States Sentencing Guidelines advisory rather
than mandatory. Id. at 764-65. Bourgeois argued below that
Blakely v. Washington, 124 S. Ct. 2531 (2004), effectively rendered
the Sentencing Guidelines unconstitutional as a whole. Pre-Booker,
the district court found that the Guidelines were not
unconstitutional as applied to Bourgeios, who had stipulated to the
relevant facts in his plea agreement, and therefore sentenced him
under the Guidelines. Bourgeois appealed. While the appeal was
pending, Booker was decided, and we invited supplemental briefing
as to whether Bourgeios preserved a claim of Booker error below
and, if so, whether that error was harmless.
The parties agree, correctly, that by challenging the
constitutionality of the Guidelines in the district court,
Bourgeios preserved a claim of Booker error, i.e., that he was
sentenced under a mandatory Guidelines system. See United States
v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005). Thus, the only
issue presented by this appeal is whether the preserved Booker
error was harmless. On that issue, the government has the burden
of showing harmlessness. Chapman v. California, 386 U.S. 18, 24
(1967); United States v. Ventura-Cruel, 356 F.3d 55, 64 (1st Cir.
2003). To make such a showing in the sentencing context, the
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government must show, at a bare minimum, "'that the error did not
affect the district court's selection of the sentence imposed.'"
United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.
2005) (quoting Williams v. United States, 503 U.S. 193, 203
(1992)).
The precise standard of proof depends on whether the
error was a constitutional one, whose harmlessness must be proved
beyond a reasonable doubt. Chapman, 386 U.S. at 24. Here,
however, even assuming, without deciding, that the error was not of
constitutional dimension (since Bourgeois' sentence was based on
the parties' factual stipulations rather than on judge-found
facts), the government has not met even the lesser standard of
demonstrating the absence of any "grave doubt" as to whether the
error was harmless. Kotteakos v. United States, 328 U.S. 750, 764-
65 (1946); see also United States v. Haidley, 400 F.3d 642, 645 (8th
Cir. 2005).
It is often some indication that a preserved Booker error
was not harmless when, as now, the district court sentenced the
defendant at the very bottom of the applicable Guidelines range.
See, e.g., United States v. Lea, 400 F.3d 1115, 1116 (8th Cir.
2005); Haidley, 400 F.3d at 645; United States v. Hazelwood, 398
F.3d 792, 801 (6th Cir. 2005); Labastida-Segura, 396 F.3d at 1143.
In this case, there are additional indications that "it is at least
possible," Hazelwood, 398 F.3d at 801, that the district court
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would impose a lesser sentence under a non-mandatory Guidelines
regime. At the sentencing hearing, Bourgeios' counsel made an
extensive proffer of the witnesses he would call if the court were
not bound by the Guidelines. Those witnesses, he represented,
would have testified that Bourgeois was cooperative during his
pretrial supervision, that he is a hard and dependable worker, and
that he overcame a severe substance abuse problem. Based on that
proffer, the district court acknowledged that Bourgeois "worked
hard and . . . [did] all the things [he] should do as a reasonable
citizen" but expressly disavowed any reliance on those factors,
which were not relevant under the Guidelines but may be relevant
under post-Booker standards. See Antonakopoulos, 399 F.3d at 81.
The government offers no indications to the contrary. Under these
circumstances, we are reluctant to say that the error was harmless.
Accordingly, the sentence is vacated and the case is
remanded for resentencing under the standards articulated in
Booker, 125 S. Ct. at 764-65. We intimate no view as to the
appropriate sentence to be imposed.
The conviction is affirmed, the sentence is vacated, and
the matter is remanded for resentencing.
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