                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       August 29, 2005
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 04-3415
 AGNES REED,                                   (D.C. No. 04-CR-20041-01-JWL)
                                                          (D. Kan.)
          Defendant-Appellant.




                                ORDER AND JUDGMENT      *




Before BRISCOE, LUCERO,            and MURPHY , Circuit Judges.


      Agnes Reed pled guilty to, and was convicted of, one count of distributing

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and

860(a), and 18 U.S.C. § 2. She appeals her forty-six month sentence in light of

United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the



      *
       This order and judgment is not binding precedent, except under the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.
government has not met its burden of proving that the district court’s Booker

error was harmless and we REMAND for resentencing. 1

                                        I.

      After a series of seven controlled buys in 2003 conducted by a Kansas

Bureau of Investigation Agent and a confidential informant (CI), Mrs. Reed was

charged in an Indictment with eight counts of distributing methamphetamine

within 1,000 feet of a public secondary school, in violation of 21 U.S.C. §§

841(a)(1) and 860(a) and 18 U.S.C. § 2. Pursuant to a plea agreement with the

government, Mrs. Reed pled guilty to Count 1 of the Indictment on July 6, 2004.

At her plea hearing Mrs. Reed admitted that she was accountable for 131.06

grams of methamphetamine — the amount sold to the Agent and CI, plus the

amount subsequently recovered from a search of her residence.

      The presentence investigation report (PSR), however, determined that in

addition to the quantities of methamphetamine she admitted to in her plea, Mrs.

Reed was responsible for 1,190.7 grams of methamphetamine that she allegedly

sold to the CI from 1999 through 2003. The PSR concluded that with the

additional amount of methamphetamine Mrs. Reed’s total offense level was 29



      1
        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. 34.1.9(G). The case is
therefore ordered submitted without oral argument.

                                         2
and her criminal history category was I, resulting in a range of imprisonment of

87–108 months. Mrs. Reed objected to the PSR’s inclusion of the additional

1,190.7 grams, citing the Supreme Court’s decision in Blakely v Washington, 542

U.S. 296 (2004), and noting that without the additional quantities the resulting

range of imprisonment would have been 46–57 months. ROA, Vol. 2 at 22–23.

       At sentencing, Mrs. Reed again raised Blakely arguments in objecting to

the enhancements. She also moved for downward departures based upon her age,

health and the sentencing disparity between her prospective sentence and the

sentences imposed on her co-defendants prosecuted in state court, stating that

each factor put her case outside of the “heartland” of the guideline range for

similar cases. Pursuant to the plea agreement, the government also filed a motion

for a six-level downward departure for substantial assistance to authorities under

United States Sentencing Guidelines (U.S.S.G.) § 5K1.1, and requested a sentence

at the low end of the guideline range. The resulting guideline range after the

inclusion of the § 5K1.1 departure was 46–57 months. 2 The district court rejected

Mrs. Reed’s Blakely challenge, explaining that “until the Supreme Court tells us

to the contrary, I am going to continue to apply the guidelines.” ROA, Vol. I,

Doc. 46 at 4. The district court then applied the PSR’s enhancements and denied


      2
        We note that without the district court’s enhancements based upon the
additional 1,190.7 grams of methamphetamine, Mrs. Reed’s guideline range after
applying the § 5K1.1 departure would have been 24–30 months.

                                          3
Mrs. Reed’s motion for downward departures. The district court did grant the

government’s § 5K1.1 motion, finding it “generous” but “appropriate” for the

circumstances surrounding her assistance. Id. at 35. It then sentenced Mrs. Reed

at the bottom of the guideline range to a term of imprisonment of 46 months, a

term of supervised release of three years and a $100 special assessment.

      While Mrs. Reed’s appeal was pending, the Supreme Court issued its

decision in Booker, which held that Blakely applies to the Sentencing Guidelines

so that “[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by plea of

guilty or a jury verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” 125 S.Ct. at 756. Mrs. Reed now argues that her

sentence should be reversed and remanded in light of Booker because she did not

admit facts regarding relevant conduct used to increase her sentence.

                                         II.

      Mrs. Reed contends, and the government concedes, that the district court

committed constitutional Booker error when it increased her offense level by four

levels based on the factual finding that she had sold an additional 1,190.7 grams

of methamphetamine to the CI from 1999 through 2003. 3 The parties also agree

that Mrs. Reed properly preserved her Booker claim by timely raising her Blakely


      3
          We express no opinion on the validity of the government’s concession.

                                          4
objections in the district court. The government contends, however, that the error

was harmless.

      Fed.R.Crim.P. 52(a) provides that “[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” In the

context of a misapplication of the guidelines, “the Supreme Court held that ‘once

the court of appeals has decided that the district court misapplied the Guidelines,

a remand is appropriate unless the reviewing court concludes, on the record as a

whole, that the error was harmless, i.e., that the error did not affect the district

court’s selection of the sentence imposed.’” United States v. Labastida-Segura,

396 F.3d 1140, 1142–43 (10th Cir. 2005) (quoting Williams v. United States, 503

U.S. 193, 203 (1992)). Where the error was preserved in the district court, the

government bears the burden of demonstrating that error was harmless. United

States v. Riccardi, 405 F.3d 852, 875 (10th Cir. 2005). Furthermore, as the

government points out in its brief, because the error is of constitutional

dimension, the government must establish that the error was harmless beyond a

reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967) (“[B]efore

a federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt.”).

      The government argues that the district court’s error was harmless because

the district court considered and rejected Mrs. Reed’s departure motion based on


                                            5
her age, health and sentencing disparity. The government relies on a particular

passage, which it argues shows that the district court acknowledged that it had

discretion to depart downward, but refused to do so:

         I recognize the Court has discretion under certain circumstances to
         depart downward, and since this is not a situation which I fail to
         recognize that discretion, but I do not believe that this case is
         outside the heartland other than — what is truly an unusual fact
         that the defendant was some 64 years on age to 68 years of age
         during the time period that this activity took place. . . . [T]he age
         of the defendant here, although unusual, is not in my personal view
         so extreme and different as to take this outside what I would
         consider the heartland. . . . [T]he health of a defendant is not of
         such a degree that it is a factor that the Court would consider
         beyond the heartland.

ROA, Vol. I, Doc. 46 at 35–37. The district court also went on to state that Mrs.

Reed’s complaint of sentencing disparity was “not something which leads me to

believe that if there is disparity, it is outside the heartland . . . it is not something

that the drafters of the Guidelines didn’t think it might happen.” Id. at 39.

According to the government, these statements show that the district court would

not reduce Mrs. Reed’s sentence on remand, thus rendering the error harmless.

The district court’s repeated reference to the “heartland,” however, controverts

the government’s contention that it has met its burden of demonstrating that the

error was harmless beyond a reasonable doubt.

       Before Booker, departures not specifically enumerated in the guidelines

were permissible only if they fell within the exception in § 3553(b), which stated


                                             6
that the district court “shall impose a sentence” within the guidelines range unless

“mitigating circumstances” existed that were “not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines.” 18

U.S.C. § 3553(b). The district court could consider only the “sentencing

guidelines, policy statements, and official commentary of the Sentencing

Commission” in determining whether the Commission adequately accounted for a

particular circumstance. Id.; see also U.S.S.G. § 5K2.0(a)(1). As the Supreme

Court explained, a district court could depart without abusing its discretion if the

case was “unusual enough for it to fall outside the heartland of cases in the

Guideline” at issue, based on whether the Sentencing Commission had forbidden,

encouraged, or discouraged consideration of certain relevant facts. Koon v.

United States, 518 U.S. 81, 98–100 (1996). The Commission, however, had made

clear that “such cases w[ould] be extremely rare.” U.S.S.G. § 5K2.0 comment.

Accordingly, we would reverse a district court’s downward departure as an abuse

of discretion if we concluded that the circumstances were not so “extraordinary”

as to place the case outside the “heartland.” See e.g., United States v.

Reyes-Rodriguez, 344 F.3d 1071, 1075–76 (10th Cir. 2003). Moreover, our

review of downward departures afforded district courts little deference with the

enactment of the PROTECT Act, Pub.L. 108-21 (2003), in effect at the time of

Mrs. Reed’s sentencing, which raised the standard of review in sentencing


                                          7
departure cases from a “unitary abuse of discretion standard” to application of a

de novo standard of review. United States v. Jones, 332 F.3d 1294, 1299 (10th

Cir.2003).

      Booker, however, excised § 3553(b) and its narrow prescription for when

departures are warranted, along with 18 U.S.C. § 3742(e), as amended by the

PROTECT Act. See Booker, 125 S.Ct. at 764. District courts now “have more

discretion to tailor sentences to individual circumstances of a defendant,” looking

to such factors articulated in 18 U.S.C. § 3553(a), which “have a new vitality”

after Booker. United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir.

2005). Thus, the district court’s denial of Mrs. Reed’s motion for a downward

departure because her health, age and disparate sentence did not distinguish her

case from the “heartland” of cases covered by the guidelines is not only

unsurprising given the legal landscape of the time, but it sheds no light on

whether it might have granted the very same motion had it known that Booker

establishes § 3553(a) as a primary point of reference and effectively allows

greater latitude in making departure decisions. As we noted in Labastida-Segura,

         Here, where [the sentence imposed] was already at the bottom of
         the guidelines range, to say that the district court would have
         imposed the same sentence given the new legal landscape (even
         after consulting the Sentencing Guidelines in an advisory capacity)
         places us in the zone of speculation and conjecture — we simply
         do not know what the district court would have done after hearing
         from the parties. Though an appellate court may judge whether a
         district court exercised its discretion (and whether it abused that

                                           8
         discretion), it cannot exercise the district court’s discretion.

396 F.3d at 1143. This case presents effectively the same uncertainties presented

by Labastida-Segura.

      As a final matter, we conclude this case is distinguishable from our recent

decision in United States v. Ollson, 413 F.3d 1119 (10th Cir. 2005). In Ollson,

we held that a non-constitutional Booker error (i.e., the application of the

Sentencing Guidelines in a mandatory fashion) was harmless because the district

court in that case granted the government’s motion to reduce the defendant’s

sentence under U.S.S.G. § 5K1.1 for his substantial assistance in an investigation.

In doing so, we noted that the district court had discretion under § 5K1.1 to depart

to the degree it found appropriate, regardless of the specific recommendation of

the government. Id. at 1121. We further emphasized there was “[n]othing in the

record [to] overcome[] the presumption that the [district] court was aware of its

discretion.” Id. Here, in contrast, the record on appeal indicates that the district

court believed its discretion to depart under § 5K1.1 was more limited. In

particular, the district court stated: “I don’t think that the 5K1.1 motion is simply

opening the door to the judge and then saying, well, now I have the opportunity to

impose whatever sentence I feel is appropriate.” ROA, Vol. I, Doc. 46, at 34.

      In sum, we conclude that the government has failed to show that the district

court’s error was harmless beyond a reasonable doubt.


                                           9
                                      III.

      Accordingly, we REMAND the defendant’s sentence to the district court

with direction to VACATE defendant’s sentence and resentence in light of

Booker.

                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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