United States v. Chalmers Brown

444 F.3d 519, 2006 U.S. App. LEXIS 9298, 2006 WL 954186
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 14, 2006
Docket04-6069
StatusPublished
Cited by20 cases

This text of 444 F.3d 519 (United States v. Chalmers Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chalmers Brown, 444 F.3d 519, 2006 U.S. App. LEXIS 9298, 2006 WL 954186 (6th Cir. 2006).

Opinions

RYAN, J., delivered the opinion of the court.

GILMAN, J. (pp. 523 - 524), delivered a separate concurring opinion.

COOK, J., concurred in both the opinion of the court and the separate concurrence.

OPINION

RYAN, Circuit Judge.

Chalmers Brown appeals the sentence he received upon his conviction for being a felon in possession of a firearm under 18 U.S.C. § 922(g) and for being an Armed Career Criminal under 18 U.S.C. § 924(e). He was initially sentenced to 360 months in prison, but on appeal that sentence was vacated and his case was remanded for new sentencing. United States v. Brown, 371 F.3d 854, 861 (6th Cir.2004). On remand Brown was sentenced to 280 months’ imprisonment, which he now appeals on the grounds that his sentence is invalid under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

We acknowledge that because the district court believed, when sentencing Brown, that the United States Sentencing Guidelines were mandatory, and because, when Booker was decided, Brown’s case was in the appellate pipeline, his sentence violated Booker. But after careful consideration, we conclude that the district court’s “error” in following the law applicable on the day of Brown’s resentencing was harmless, because the sentence imposed was based upon a significant upward departure that resulted in a reasonable sentence. Therefore, we will AFFIRM Brown’s sentence.

I.

Brown was arrested in December 2001 for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He pled guilty to this offense and at sentencing the district court imposed a sentence of confinement for 360 months under the 2001 Sentencing Guidelines. Brown, 371 F.3d at 857. Brown appealed, and a panel of this court vacated the sentence because it was unsure whether the upward departure was a product of the district court’s “inde[521]*521pendent judgment.” Id. The district court was directed to resentence Brown, giving “independent thought to whether th[e] range was appropriate under the individual circumstances of Mr. Brown’s case.” Id. at 861.

A second sentencing hearing was held on August 26, 2004, which was before Booker was decided. The district court determined that the statutory range was 180 months to life, based upon Brown’s felon in possession of a firearm conviction, to which he had pled guilty, and the court’s conclusion that Brown was subject to the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e). The act applies where the defendant has three separate prior convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1) (West Supp.2005).

Although, as we have said, Booker had not been decided, Brown’s alert counsel, April Goode of the Tennessee bar, objected to the use of the Guidelines, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which Goode argued should apply to federal guideline sentencing. But the district court correctly observed that it was bound to follow the precedent of this circuit, which at the time was that the federal sentencing Guidelines were applicable, constitutional, and mandatory. United States v. Koch, 383 F.3d 436 (6th Cir.2004), vacated, 544 U.S. 995, 125 S.Ct. 1944, 161 L.Ed.2d 764 (2005).

In calculating an appropriate sentence under the guidelines, the district court began with the applicable punishment range for Brown’s felon in possession of a firearm conviction, then took into account, as relevant conduct, Brown’s involvement in an armed robbery committed three weeks before his arrest for the firearm offense. The court noted that Brown had discharged a firearm during the robbery, albeit a different weapon than the one for possession of which he was being sentenced. The court also observed that one of the robbery victims suffered serious bodily injury in the robbery. The result of including these “enhancing factors,” which were partially offset by a deduction for acceptance of responsibility, was a base offense level of 30.

The court then turned to Brown’s criminal history. After noting that 13 criminal history points were sufficient to place a defendant in the highest criminal history category, the court found that Brown had earned 53 points. The court, therefore, decided that an upward departure was appropriate. Relying on “the authority and the discretion” granted under U.S.S.G. § 4A1.3, the court departed upward from Offense Level 30 Category VI (168-210 months) to Offense Level 34 Category VI (262-327 months) and sentenced Brown to confinement for 280 months.

II.

Brown’s case was on direct appeal to this court when Booker was decided. Therefore, Brown may avail himself of the rulings announced in Booker. United States v. Oliver, 397 F.3d 369, 377 (6th Cir.2005). Because Brown raised his objection to the Guidelines before the district court, we employ de novo review. United States v. Jones, 399 F.3d 640, 649 (6th Cir.), cert. denied, — U.S.-, 126 S.Ct. 148, 163 L.Ed.2d 146 (2005). Additionally, if an error is found, Booker instructs “reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and [if it was not] whether it fails the ‘plain-error’ test.” Booker, 125 S.Ct. at 769. Because Brown did raise an objection to the Guidelines below, we do not conduct a plain-error analysis, but inquire instead whether the district court’s error — and we acknowledge that it erred in following this court’s [522]*522precedent — was harmless. United States v. Christopher, 415 F.3d 590, 593 (6th Cir.2005); United States v. McDaniel, 398 F.3d 540, 546 (6th Cir.2005). In United States v. Hazelwood, 398 F.3d 792 (6th Cir.2005), this court held that a remand is necessary under the harmless error standard “unless we are certain that any ... error was harmless — ie. any such error ‘did not affect the district court’s selection of the sentence imposed.’ ” Id. at 801 (quoting Williams v. United States,

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United States v. Chalmers Brown
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Bluebook (online)
444 F.3d 519, 2006 U.S. App. LEXIS 9298, 2006 WL 954186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chalmers-brown-ca6-2006.