United States v. Nee , 261 F.3d 79 ( 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Not For Publication in West's Federal Reporter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. 00-2397
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD A. X. STOKES,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Torruella, Dyk,* and Howard,
Circuit Judges.
Judith H. Mizner, for appellant.
Cynthia A. Young, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief, for
appellee.
September 8, 2005
*
Of the Federal Circuit, sitting by designation.
Per Curiam. On November 5, 2004, we affirmed the
conviction of defendant-appellant Ronald A. X. Stokes for being a
felon in possession of a firearm, 18 U.S.C. § 922(g), as well as
his sentence of 30-years imprisonment. See United States v.
Stokes, 388 F.3d 21 (1st Cir. 2004). Stokes subsequently
petitioned for certiorari, during which time the Supreme Court
decided United States v. Booker, 125 S. Ct. 738 (2005). In a
routine order, the Supreme Court granted Stokes' petition for
certiorari pro forma, vacated our judgment, and remanded for
further consideration in light of Booker. See Stokes v. United
States, 125 S. Ct. 1678 (2005). After review of the parties'
supplemental briefs, we again uphold the length of Stokes' sentence
and reinstate the judgment, but remand as to whether the district
court would run the federal sentence concurrently with any parole
sentence that the state might eventually impose from Stokes' prior
conviction.
The facts surrounding this case have been thoroughly
explained elsewhere. See Stokes, 388 F.3d at 23-25; United
States v. Stokes, 124 F.3d 39, 41-42 (1st Cir. 1997); United
States v. Stokes, 947 F. Supp. 546, 548-50 (D. Mass. 1996);
Commonwealth v. Stokes, 653 N.E.2d 180, 181-84 (Mass. App. Ct.
1995), rev. denied, 655 N.E.2d 1277 (Mass. 1995). In a nutshell,
Stokes was convicted on one count of being a felon in possession of
a firearm -- an AK-47 -- for a shooting which killed one person and
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wounded two other individuals.1 The sentencing court found Stokes
to be an Armed Career Criminal pursuant to the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e), with a criminal history
category of VI. The court then determined Stokes' total offense
level to be 34 -- placing his Guidelines sentencing range from 262
to 327 months' imprisonment -- due to the "overwhelming" evidence
that he had used an AK-47 during a crime of violence. United
States v. Stokes, No. CRIM 95-10379-RGS, 2000 WL 246478, at *4 (D.
Mass. Feb. 28, 2000). Upon the government's motion, the court also
departed upward one level, pursuant to U.S.S.G. § 5K2.6, because of
"the extraordinarily dangerous nature of this particular weapon and
ammunition involved in this offense." The court then rejected
Stokes' argument for a downward departure. With a resulting
Guidelines sentencing range of 292 to 365 months, the court
sentenced Stokes to 360 months, stating that "Mr. Stokes' history
of violent crimes and recidivist propensity justifies a sentence at
the upper end of the applicable sentencing range."
The court ordered Stokes' federal sentence to run
concurrently with the state sentence stemming from the same
incident, but held that under U.S.S.G. § 5G1.3, it did not have the
authority to run the federal sentence concurrently with any parole
1
In connection with this same incident, Stokes was also
previously convicted and sentenced in state court on one count of
illegally carrying a firearm and two counts of assault and battery
with a dangerous weapon; he was acquitted, however, of the first-
degree murder charge. See Stokes, 653 N.E.2d at 180, n.1.
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sentence that the state might eventually impose for a prior
conviction. In relevant part, the court stated: "I would be
willing to hear further by way of subsequent filings on this issue,
but . . . [t]he problem is that the Guidelines have an explicit
prohibition . . . . [I]f that's wrong, then I might consider it in
the sentencing order."
Stokes now argues that the district court erred in
sentencing him under the mandatory guidelines, and that under an
advisory system, the district court might (1) impose a more
favorable sentence, and (2) reconsider its denial of Stokes'
request that his federal sentence run concurrently with any future
state parole sentence.
While it is clear that sentencing under the mandatory
guidelines was in error, Stokes has not preserved this claim of
error below, and thus, our review is for plain error. See United
States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). Under
this standard, Stokes must demonstrate a "reasonable probability"
that the sentencing court would have imposed a lower sentence under
an advisory guidelines regime. Id.; see also United States v.
Heldeman, 402 F.3d 220, 224 (1st Cir. 2005) (requiring a
"reasonable indication that the district judge might well have
reached a different result under advisory guidelines"). When,
however, "under a mandatory guidelines regime, a sentencing court
has elected to sentence the defendant substantially above the
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bottom of the range, that is a telling indication that the court,
if acting under an advisory guidelines regime, would in all
likelihood have imposed the same sentence." United States v.
González-Mercado, 402 F.3d 294, 304 (1st Cir. 2005); see also
United States v. Brennick, 405 F.3d 96, 101-02 (1st Cir. 2005);
United States v. Carpenter, 403 F.3d 9, 14 (1st Cir. 2005).
Here, the court sentenced Stokes "substantially above the
bottom of the range" -- 360 months from a sentencing range of 292
to 365 months -- based on "Stokes' history of violent crimes and
recidivist propensity." Moreover, in so doing, the court exercised
its discretion to depart upward, and "[b]y moving up, the judge
evinces not only a belief that discretion exists but also a
disposition to exercise it adversely to the accused." United
States v. Lee, 399 F.3d 864, 867 (7th Cir. 2005) (holding that an
upward departure may be one indication that errors from treating
the guidelines as mandatory do not affect defendant's substantial
rights). Under these circumstances, we find that Stokes has failed
to show a reasonable probability that the district court would have
imposed a lower sentence under an advisory guidelines system.
We find, however, that the district court might have
ruled differently on the concurrency issue. As this court has
stated, proof of reasonable probability that the district judge
might have reached a different result under advisory guidelines is
not "overly demanding." Heldeman, 402 F.3d at 224. In the instant
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case, the fact that the sentencing judge indicated that he was
willing to consider the concurrency issue but for the mandatory
guidelines is sufficient for a Booker remand. See United States v.
Burhoe, 409 F.3d 5, 11 (1st Cir. 2005) (finding reasonable
probability when the district judge stated "I don't believe the
language of the guidelines permit me to tailor this").
Thus, we again affirm Stokes' conviction and sentence,
and order our earlier judgment reinstated, but remand to the
district court as to whether, under an advisory guidelines system,
it would order Stokes' federal sentence to run concurrently with
any future state parole sentence.
It is so ordered.
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