STAHL, Senior Circuit Judge.
Appellant David “Ovid” MacKinnon was sentenced before the Supreme Court’s decision in
United States v. Booker,
543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), under a mandatory Guidelines system, as a career offender to 262 months imprisonment after pleading guilty to one count of drug trafficking. His initial request to this court was for a review of the district court’s denial of his motion for downward departure, claiming,
inter alia,
that his physical, mental, and familial circumstances, as well as the fact that his criminal history consists of mostly minor street crimes, took him out of the “heartland” of typical cases with the same sentencing range. He also claimed that his sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. At the invitation of this Court, MacKinnon has filed two supplemental briefs arguing that he should be resen-tenced in light of
Booker.
We agree and remand for resentencing.
I. BACKGROUND
Between July 1999 and December 2001, the Drug Enforcement Agency (“DEA”), in conjunction with local, state, and federal agencies, conducted an investigation of drug trafficking in and around the Franklin Hill Housing Project in Dorchester, Massachusetts. During the course of the investigation, on three occasions, Mac-Kinnon was observed selling crack cocaine.
On January 30, 2002, MacKinnon was charged with distributing five grams or more of cocaine base (“crack cocaine”) in violation of 21 U.S.C. § 841(a)(1), and Aiding and Abetting in violation of 18 U.S.C. § 2. Subsequently, on April 2, 2002, the government filed an information pursuant to 21 U.S.C. § 851, informing MacKinnon that he faced enhanced penalties under 21 U.S.C. § 841(b)(1)(B), and establishing MacKinnon’s predicate felony convictions for purposes of enhanced sentencing under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1.
On January 6, 2003, MacKinnon pleaded guilty to the one count of drug trafficking, but reserved his right to dispute that the amount of drugs involved in the offense of conviction was “five grams or more.”
The probation department issued a Pre-Sentence Report (“PSR”), and, based upon the fact that MacKinnon had at least four predicate felony convictions of either a crime of violence or an applicable controlled substance offense, it concluded that MacKinnon was a career offender pursuant to U.S.S.G. § 4B1.1. MacKinnon’s resulting base offense level as calculated in
the PSR was 37, and his Criminal History Category (“CHC”) was VI. The PSR awarded MacKinnon a three-level downward adjustment for acceptance of responsibility, resulting in an adjusted offense level of 34. Thus, MacKinnon’s Guideline Sentencing Range was 262-324 months’ imprisonment.
MacKinnon moved for downward departure on numerous grounds, and the government. opposed MacKinnon’s request.
At the sentencing hearing, the district court criticized the government’s decision to file an § 851 information in Mac-Kinnon’s case. Just prior to imposing the sentence, the district court stated:
I do. not believe that,-the law allows me to depart in this case.... There are simply no bases under the law, as I understand it, that allow a departure. It is an obscene sentence that has to be imposed. It is unwarranted by the conduct, granted that Mr. MacKinnon has a hugely long record, but 188 months, which [is what] the sentence would have been without the [§ ] 851 notice, was more than adequate for this .then forty-five-year-old man to serve, he would have been sixty or so when he got out, but I have no choice.
The court further stated: “I have worked hard on the memorandum and tried to figure out some way under the law in which the sentence could be reduced. I can’t do it. And although I totally disagree with our government’s policies at this stage concerning sentencing, I am bound to obey my oath and to do this according to principle, knowing all the time that this is'an unjust, excessive and obscene sentence.” The court then eonclud-ed by stating “I have no power to grant you leniency. I’m without authority to do other than as the statute prescribes, having in mind the charging decisions that were made and the 851 notice.” The court then sentenced MacKinnon to the minimum permitted under the mandatory Guidelines scheme, 262 months’ incarceration followed by eight years of supervised release.
Finding that remand is warranted in light of
Booker,
we remand for resentenc-ing, and thus we do not address Mac-Kinnon’s claims of sentencing error under our
pre-Booker
precedent or violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.
II. DISCUSSION
In
United States v. Booker,
543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), decided after we heard argument in MacKinnon’s case, the Supreme Court excised the provision of the Sentencing Reform Act of 1984, Pub.L. 98-473, Title II, § 211-238; 98 Stat.1987 (1984), that made the Guidelines mandatory in federal court sentencing, 18 U.S.C. § 3553(b)(1).
See
125 S.Ct. at 764-68.
In addition, the Court stated that the principles announced in
Booker
apply to all cases pending on direct review.
Id.
at 769. Courts of appeals were then directed, when evaluating claims under
Booker,
to “apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain error’ test.”
Id.
In
United States v. Antonakopoulos,
this court held that the error under
Booker
is that “the defendant’s Guidelines
sentence was imposed under a mandatory system.”
Antonakopoulos,
399 F.3d at 75. And, we held there that the argument that a
Booker
error occurred is preserved if the defendant below argued error under
Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or
Blakely v. Washington,
542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), or that the Guidelines were unconstitutional.
Antonakopoulos,
399 F.3d at 75. Here, Mac-Kinnon made no such arguments below, and thus his claim under
Booker
-is unpre-served.
In
Antonakopoulos,
we also set forth the applicable framework for review of unpreserved
Booker
claims. Utilizing the four-prong test set forth in
United States v. Olano,
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STAHL, Senior Circuit Judge.
Appellant David “Ovid” MacKinnon was sentenced before the Supreme Court’s decision in
United States v. Booker,
543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), under a mandatory Guidelines system, as a career offender to 262 months imprisonment after pleading guilty to one count of drug trafficking. His initial request to this court was for a review of the district court’s denial of his motion for downward departure, claiming,
inter alia,
that his physical, mental, and familial circumstances, as well as the fact that his criminal history consists of mostly minor street crimes, took him out of the “heartland” of typical cases with the same sentencing range. He also claimed that his sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. At the invitation of this Court, MacKinnon has filed two supplemental briefs arguing that he should be resen-tenced in light of
Booker.
We agree and remand for resentencing.
I. BACKGROUND
Between July 1999 and December 2001, the Drug Enforcement Agency (“DEA”), in conjunction with local, state, and federal agencies, conducted an investigation of drug trafficking in and around the Franklin Hill Housing Project in Dorchester, Massachusetts. During the course of the investigation, on three occasions, Mac-Kinnon was observed selling crack cocaine.
On January 30, 2002, MacKinnon was charged with distributing five grams or more of cocaine base (“crack cocaine”) in violation of 21 U.S.C. § 841(a)(1), and Aiding and Abetting in violation of 18 U.S.C. § 2. Subsequently, on April 2, 2002, the government filed an information pursuant to 21 U.S.C. § 851, informing MacKinnon that he faced enhanced penalties under 21 U.S.C. § 841(b)(1)(B), and establishing MacKinnon’s predicate felony convictions for purposes of enhanced sentencing under United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1.
On January 6, 2003, MacKinnon pleaded guilty to the one count of drug trafficking, but reserved his right to dispute that the amount of drugs involved in the offense of conviction was “five grams or more.”
The probation department issued a Pre-Sentence Report (“PSR”), and, based upon the fact that MacKinnon had at least four predicate felony convictions of either a crime of violence or an applicable controlled substance offense, it concluded that MacKinnon was a career offender pursuant to U.S.S.G. § 4B1.1. MacKinnon’s resulting base offense level as calculated in
the PSR was 37, and his Criminal History Category (“CHC”) was VI. The PSR awarded MacKinnon a three-level downward adjustment for acceptance of responsibility, resulting in an adjusted offense level of 34. Thus, MacKinnon’s Guideline Sentencing Range was 262-324 months’ imprisonment.
MacKinnon moved for downward departure on numerous grounds, and the government. opposed MacKinnon’s request.
At the sentencing hearing, the district court criticized the government’s decision to file an § 851 information in Mac-Kinnon’s case. Just prior to imposing the sentence, the district court stated:
I do. not believe that,-the law allows me to depart in this case.... There are simply no bases under the law, as I understand it, that allow a departure. It is an obscene sentence that has to be imposed. It is unwarranted by the conduct, granted that Mr. MacKinnon has a hugely long record, but 188 months, which [is what] the sentence would have been without the [§ ] 851 notice, was more than adequate for this .then forty-five-year-old man to serve, he would have been sixty or so when he got out, but I have no choice.
The court further stated: “I have worked hard on the memorandum and tried to figure out some way under the law in which the sentence could be reduced. I can’t do it. And although I totally disagree with our government’s policies at this stage concerning sentencing, I am bound to obey my oath and to do this according to principle, knowing all the time that this is'an unjust, excessive and obscene sentence.” The court then eonclud-ed by stating “I have no power to grant you leniency. I’m without authority to do other than as the statute prescribes, having in mind the charging decisions that were made and the 851 notice.” The court then sentenced MacKinnon to the minimum permitted under the mandatory Guidelines scheme, 262 months’ incarceration followed by eight years of supervised release.
Finding that remand is warranted in light of
Booker,
we remand for resentenc-ing, and thus we do not address Mac-Kinnon’s claims of sentencing error under our
pre-Booker
precedent or violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.
II. DISCUSSION
In
United States v. Booker,
543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), decided after we heard argument in MacKinnon’s case, the Supreme Court excised the provision of the Sentencing Reform Act of 1984, Pub.L. 98-473, Title II, § 211-238; 98 Stat.1987 (1984), that made the Guidelines mandatory in federal court sentencing, 18 U.S.C. § 3553(b)(1).
See
125 S.Ct. at 764-68.
In addition, the Court stated that the principles announced in
Booker
apply to all cases pending on direct review.
Id.
at 769. Courts of appeals were then directed, when evaluating claims under
Booker,
to “apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain error’ test.”
Id.
In
United States v. Antonakopoulos,
this court held that the error under
Booker
is that “the defendant’s Guidelines
sentence was imposed under a mandatory system.”
Antonakopoulos,
399 F.3d at 75. And, we held there that the argument that a
Booker
error occurred is preserved if the defendant below argued error under
Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or
Blakely v. Washington,
542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), or that the Guidelines were unconstitutional.
Antonakopoulos,
399 F.3d at 75. Here, Mac-Kinnon made no such arguments below, and thus his claim under
Booker
-is unpre-served.
In
Antonakopoulos,
we also set forth the applicable framework for review of unpreserved
Booker
claims. Utilizing the four-prong test set forth in
United States v. Olano,
507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), there must be (1) an error (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
See Antonakopoulos,
399 F.3d at 77. We went on to describe a situation similar to that presented by MacKinnon as one presenting a strong argument for remand:
[HJistory shows that the mandatory nature of the Guidelines has produced particular results which led trial judges to express that the sentences imposed were unjust, grossly unfair, or disproportionate to the crime committed, and the judges would otherwise have sentenced differently. Where the district judge has said as much about a Guidelines sentence, that is a powerful argument for remand. If the resulting sentence after' remand is itself unreasonable, the government can appeal.
Id.
at 81 (internal citations omitted).
-Here, we believe that this record, in light of the judge’s comments and the numerous grounds presented by Mac-Kinnon for departure that could not be considered under a mandatory Guidelines system, presents a case for remand.
Accordingly, MacKinnon’s sentence is
VACATED,
and the case is
REMANDED
for resentencing.