United States v. Bowie , 191 F. App'x 695 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 04-6300
v. (W .D. Oklahoma)
(D.Ct. No. O3-CR-06-M )
BREN DA LOU BO W IE,
Defendant - Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On August 30, 2004, Brenda Lou Bowie was sentenced to 120 months
imprisonment for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1), and 60 months for possessing a firearm in furtherance of a
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), to run consecutively.
Bowie appeals from her sentence raising United States v. Booker, 543 U.S. 220(2005). W e exercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291and AFFIRM .
Background:
On M ay 8, 2003, Bowie, along with various defendants associated with the
Outlaws M otorcycle Club, were charged in a 48-count superseding indictment
alleging various drug and firearm offenses. On February 9, 2004, Bowie pled
guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1), (Count 1), and possessing a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1) (Count 2). A presentence report
(PSR ) determined Bowie’s criminal history to be Category II. It recommended
the initial base offense level on Count 1 at 14 but increased the base offense level
to 36 due to several enhancements and a reduction. 1 This resulted in a guideline
range of 210 to 262 months for Count 1. However, the guideline range for Count
1 exceeded the statutory maximum of 120 months. The guideline for Count 2 was
1
Pursuant to USSG §2K2.1(c)(1), the PSR recommended a finding that Bowie
possessed or used a firearm in connection with the commission or attempted commission
of another offense. Under the cross-reference to USSG §2X1.1(a), the base offense level
is set by the base offense level for the substantive offense. Under USSG §2D1.1(c)(1),
the base offense level for 161,375.34 kilograms of marijuana equivalent is 38. The PSR
then recommended a two point reduction for acceptance of responsibility, resulting in a
total offense level of 36.
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the statutory minimum of 60 months.
The sentencing hearing was conducted on August 30, 2004. Bowie
objected to the PSR’s finding of the drug quantity at issue based on the Supreme
Court’s then-recent decision in Blakely v. Washington, 542 U.S. 296 (2004).
After hearing testimony, the district court found by a preponderance of the
evidence that the testimony supported the conclusions contained in the PSR. The
district court sentenced Bowie to 120 months for Count 1 and 60 months for
Count 2, to run consecutively.
The district court also imposed two alternate sentences in anticipation of a
ruling by the Supreme Court applying Blakely to the federal sentencing
guidelines. In the event the sentencing guidelines w ere invalidated in their
entirety, the first alternate sentence imposed an identical sentence to that of the
guideline sentence of 120 months for Count 1 and a consecutive term of 60
months on Count 2. In the event only the upward enhancements were found to be
unconstitutional, the district court recalculated the guideline range as 12 to 18
months and ordered a sentence of 18 months on Count 1 and a consecutive term
of 60 months on Count 2.
On appeal, Bowie argues the district court’s application of the guidelines in
a mandatory fashion constitutes error under the Supreme Court’s decision in
Booker. Bowie also argues the first alternate sentence imposed by the district
court was unreasonable and that “fairness would dictate that this case be sent back
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to the district court for further sentencing in light of cases which have been
decided since the original sentence was imposed.” (A ppellant’s Br. at 7.)
Analysis:
The district court’s application of the guidelines in a mandatory fashion
was non-constitutional Booker error. United States v. Gonzalez-Huerta, 403 F.3d
727, 731-32 (10th Cir. 2005) (en banc), cert. denied, 126 S.Ct. 495 (2005).
Bowie’s objection based on Blakely was sufficient to preserve her Booker
argument on appeal, United States v. Geames, 427 F.3d 1333, 1339 (10th Cir.
2005), and thus, we review her sentence for harmless error. United States v.
Lang, 405 F.3d 1060, 1064 (10th Cir. 2005); United States v. Riccardi, 405 F.3d
852, 874-75 (10th Cir.), cert. denied, 126 S.Ct. 299 (2005). An error is harmless
if, after reviewing the record as a whole, this Court determines that it did not
affect the district court’s imposition of the sentence. United States v. Labastida-
Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005); United States v. Corchado, 427
F.3d 815, 821 (10th Cir. 2005), cert. denied, 126 S.Ct. 1811 (2006). The
government bears the burden of establishing harmlessness beyond a reasonable
doubt. See United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir. 2005).
Sentencing error is harmless where the district court imposed an identical
alternate sentence in anticipation of the result in Booker. Corchado, 427 F.3d at
821.
The crux of this case is which of the two alternate sentences imposed by the
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district court is operative after Booker’s invalidation of the mandatory provisions
of the federal sentencing guidelines. On the one hand, the first alternate sentence
presupposed the complete invalidation of the guidelines, which did not occur. See
Labastida-Segura, 396 F.3d at 1142. On the other hand, the second alternate
sentence presupposed the invalidation of only the upward departure provisions of
the sentencing guidelines, which were similarly untouched by Booker. See United
States v. M ontgomery, 439 F.3d 1260, 1262 (10th Cir. 2006) (approving
reasonable discretionary upward departures post-Booker). Given that our inquiry
seeks to establish, if possible, the sentence that would have been imposed by the
district court if it had not felt bound by the guidelines, see Corchado, 427 F.3d at
821; United States v. Serrano-Dominguez, 406 F.3d 1221, 1223-24 (10th Cir.
2005), the first alternate sentence clearly controls. Only the first alternate
sentence reveals the discretionary sentence the district court would have imposed
in the absence of the mandatory provisions of the guidelines. Because the
discretionary first alternate sentence is identical to the sentence imposed under
the mandatory application of the guidelines, the district court’s non-constitutional
Booker error was harmless.
Because the first alternate sentence imposed was discretionary, we review it
on appeal for reasonableness in light of the factors listed in 18 U.S.C. § 3553(a).
United States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005). Bowie objects to
the reasonableness of the sentence imposed based on the district court’s failure to
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“consider or at the very least . . . make known her consideration of other
sentencing factors as set forth in 18 U.S.C. § 3553(a) before imposing sentence.”
(A ppellant’s Br. at 7.) However, we have never required the district court to
“march through [18 U.S.C.] § 3553(a)’s sentencing factors[.]” United States v.
Rines, 419 F.3d 1104, 1107 (10th Cir. 2005), cert. denied, 126 S.Ct. 1089 (2006).
It is sufficient for the district court to examine the record in its entirety, hear
opposing arguments and demonstrate a familiarity with the facts of the case. Id.(“W e will not make the useless gesture of remanding for reconsideration when
Defendant was aware at sentencing that all relevant factors would be considered
by the district court.”); see also Corchado, 427 F.3d at 821. In light of the factors
listed in 18 U.S.C. § 3553(a), the district court’s first alternate sentence of 120
months for Count 1 and 60 months for Count 2, to run consecutively was
reasonable.
A FFIR ME D.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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