                        NOT RECOMMENDED FOR PUBLICATON
                               File Name: 20a0046n.06

                                           No. 19-3369

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Jan 23, 2020
UNITED STATES OF AMERICA,                           )                  DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,
                                                    )
                                                    )       ON APPEAL FROM THE UNITED
v.
                                                    )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
RAMON R. COLLINS,
                                                    )       OHIO
       Defendant-Appellant.                         )
                                                    )


       BEFORE: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.

       MURPHY, Circuit Judge. Ramon Collins pleaded guilty to distributing heroin and fenta-

nyl in violation of 21 U.S.C. § 841(a)(1). The district court found that Collins’s prior Georgia

conviction qualified as a “controlled substance offense” and made him a “career offender” under

the Sentencing Guidelines. U.S.S.G. § 4B1.1(a) (2018). The Georgia law prohibits the possession

of large quantities of drugs, Ga. Code Ann. § 16-13-31(a)(1), but the definition of “controlled

substance offense” reaches only those possession offenses committed with the “intent to manufac-

ture, import, export, distribute, or dispense,” U.S.S.G. § 4B1.2(b) (emphasis added). The district

court ruled that the Georgia offense could fall within that definition based on the logic of United

States v. Madera-Madera, 333 F.3d 1228, 1230 (11th Cir. 2003). This enhancement produced a

guidelines range of 188 to 235 months’ imprisonment. The court varied downward and imposed

a 96-month sentence.
No. 19-3369, United States v. Collins


       Despite arguing for the career-offender enhancement in the district court, the United States

concedes on appeal that the enhancement cannot apply under the conflicting logic from our own

decision in United States v. Montanez, 442 F.3d 485, 493–94 (6th Cir. 2006). (The government

claims that Montanez was wrong and Madera-Madera right, but it concedes that Montanez binds

us. Cf. United States v. Lopez-Salas, 513 F.3d 174, 179–80 (5th Cir. 2008) (citing conflict).) Both

parties thus agree that Collins’s guidelines range should have been 46 to 57 months’ imprisonment.

Their agreement simplifies our task: We must decide only whether the error in calculating the

guidelines range was harmless.

       The United States bears the burden of proving harmlessness. United States v. Vonn, 535

U.S. 55, 68 (2002); Fed. R. Crim. P. 52(a). It “must demonstrate . . . with certainty that the error

at sentencing did not cause the defendant to receive a more severe sentence.” United States v.

Lanesky, 494 F.3d 558, 561 (6th Cir. 2007) (citation omitted). The United States can do so by

showing “that the district court would have imposed its sentence regardless of the Guidelines

range[.]” United States v. Morrison, 852 F.3d 488, 491 (6th Cir. 2017) (citing Molina-Martinez v.

United States, 136 S. Ct. 1338, 1346 (2016)); accord United States v. Buchanan, 933 F.3d 501,

516 (6th Cir. 2019).

       That showing is not easy. The Sentencing Guidelines are “the starting point and the initial

benchmark” in a district court’s sentencing analysis. Gall v. United States, 552 U.S. 38, 49 (2007).

A district court must explain any departure from the Guidelines, see id. at 50, so the Guidelines

“anchor the court’s discretion in selecting an appropriate sentence,” Molina-Martinez, 136 S. Ct.

at 1349. “In the usual case, then, the systemic function of the selected Guidelines range will affect

the sentence.” Id. at 1346; accord United States v. Susany, 893 F.3d 364, 368 (6th Cir. 2018).




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No. 19-3369, United States v. Collins


       Under this framework, we have found errors in calculating the guidelines range to be harm-

less when a district court made clear that “it would have given [the defendant] the same sentence”

even if it had started from the correct guidelines range without the calculation error. United States

v. Bishop, __ F. App’x __, No. 19-1140, 2019 WL 6824854, at *3 (6th Cir. Dec. 13, 2019). Con-

sider our decision in Bishop. There, the district court imposed a 240-month sentence after finding

that the defendant qualified for an enhancement because of his pattern of sexually abusing children.

Id. at *2. Even if the enhancement did not apply, the district court stated alternatively, it would

have varied upward from the non-enhanced guidelines range (151 to 188 months) and imposed the

same sentence. Id. at *3. We found any error in applying the enhancement harmless because the

district court would have imposed the same sentence anyway, and an upward variance from the

correct guidelines range would have been reasonable. Id. Other cases finding guidelines errors

harmless typically fit this description: The district court notes at sentencing that it would have

imposed the same sentence even if it had not adopted the enhancement that a defendant wants to

challenge on appeal. See, e.g., Morrison, 852 F.3d at 492 & n.2; United States v. Maxwell, 678 F.

App’x 395, 396 (6th Cir. 2017); United States v. Mizori, 601 F. App’x 425, 431–32 (6th Cir. 2015).

       When, by contrast, we could not conclusively find that the district court would have im-

posed the same sentence, we have not found a guidelines error to be harmless. Consider our deci-

sion in Buchanan. There, the district court imposed an enhancement that applies to defendants

who engage in a pattern of criminal conduct as a livelihood. 933 F.3d at 508. The enhancement

led to a guidelines range of 63 to 78 months’ imprisonment, but the district court varied downward

by imposing a 50-month sentence. Id. We held that the court mistakenly applied this enhancement

and that the defendant’s guidelines range should have been 51 to 63 months. Id. at 517. Even

though the district court’s actual sentence still fell below the corrected guidelines range, the court



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No. 19-3369, United States v. Collins


nowhere indicated that it would have imposed the same sentence without the enhancement. We

thus decided that the court “may well have sentenced [the defendant] to a shorter term of impris-

onment had it calculated his Guidelines range differently.” Id.; see, e.g., United States v. Castro-

Martinez, 713 F. App’x 481, 484 (6th Cir. 2017) (order); United States v. Schock, 862 F.3d 563,

569–70 (6th Cir. 2017).

       How does this dichotomy play out here? We cannot say “with certainty” that the district

court would have imposed its 96-month sentence absent the career-offender enhancement.

Lanesky, 494 F.3d at 561. Unlike in Bishop and the other cases in which we have found guidelines

errors harmless, the district court in this case did not alternatively state that it would have imposed

an identical sentence even if it had rejected the career-offender enhancement. To be sure, the court

did say that “even without the career offender designation I would find that a sentence of 46 to 57

months is too low, so if you weren’t a career offender I would vary or depart upward from that

based on your criminal history and specifically [the prior] drug-related” crimes. But the court

nowhere suggested that it would have opted for what would have been a significant 39-month

upward variance from the correct guidelines range. To the contrary, it repeatedly recognized that

it was in fact varying downward from the “advisory range for career offender.” That incorrect

guidelines range may well have had an upward “gravitational pull” on the ultimate sentence. See

Moore v. United States, 676 F. App’x 383, 386 (6th Cir. 2017). This uncertainty precludes a

harmlessness finding.

       The cases on which the United States relies do not change our minds. In most of them, the

district court expressed on the record that its sentence would have been the same even without the

error. One district court said its sentence would be “188 months whether I get at it from the low

end of the guidelines where I am today or high end of the guidelines on the defense view.” United



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No. 19-3369, United States v. Collins


States v. Steel, 609 F. App’x 851, 854 (6th Cir. 2015) (citation omitted). Another failed to recog-

nize its authority to depart from a Guideline on policy grounds, but made clear that it would not

have departed from the Guideline on the facts of the case even if it could have. United States v.

Kamper, 748 F.3d 728, 743 (6th Cir. 2014). A third court indicated: “the offense level would not

have been changed, even were the Court to have found merit in [the defendant’s] objection.”

United States v. Lalonde, 509 F.3d 750, 765 (6th Cir. 2007) (citation omitted). That leaves United

States v. Jeross, 521 F.3d 562 (6th Cir. 2008). There, both the district court’s mistaken calculation

and the correct calculation generated a guidelines range that was above the statutory maximum.

521 F.3d at 574. The record gave no indication that the court’s decision to impose the statutory-

maximum sentence would have changed based on that inconsequential error. See id. at 576.

       The same cannot be said for this case. A large gap exists between the correct guidelines

range (46 to 57 months) and the mistaken guidelines range (188 to 235 months). That said, the

district court might well impose a similar sentence on remand (we need not opine on the reasona-

bleness of such a hypothetical sentence at this point). But we cannot say with certainty that the

court will impose an identical one. Cf. Castro-Martinez, 713 F. App’x at 484.

       We reverse and remand for resentencing.




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