                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 06a0131p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                   X
                              Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 04-6069
         v.
                                                    ,
                                                     >
 CHALMERS BROWN,                                    -
                           Defendant-Appellant. -
                                                   N
                     Appeal from the United States District Court
                  for the Western District of Tennessee at Memphis.
                 No. 02-20059—Samuel H. Mays, Jr., District Judge.
                                 Submitted: October 24, 2005
                              Decided and Filed: April 14, 2006
                    Before: RYAN, GILMAN, and COOK, Circuit Judges.
                                     _________________
                                          COUNSEL
ON BRIEF: April R. Goode, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE
WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. David N. Pritchard,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
       RYAN, J., delivered the opinion of the court. GILMAN, J. (pp. 5-6), 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, 125 S. Ct. 738 (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

                                                1
No. 04-6069           United States v. Brown                                                  Page 2


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 “independent 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 (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, 125 S. Ct. 1944 (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, 126
S. Ct. 148 (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
No. 04-6069           United States v. Brown                                                     Page 3


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
precedent—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—i.e. any such error ‘did not affect the district court’s
selection of the sentence imposed.’” Id. at 801 (quoting Williams v. United States, 503 U.S. 193,
203 (1992)).
                                                  III.
        Brown first claims that the district court violated his Sixth Amendment rights under Booker
because, in classifying him as an armed career offender under 18 U.S.C. § 924(e), the court made
findings that at least three of Brown’s prior convictions were either for a “violent felony” or a
“serious drug offense,” factual issues, Brown argues, that should have been decided by a jury. We
reject this argument because this court has previously held that “Apprendi does not require the
nature of prior convictions to be determined by a jury.” United States v. Barnett, 398 F.3d 516, 525
(6th Cir. 2005).
         We agree with Brown, however, that the district court erred in sentencing him in the belief
that the Guidelines were mandatory and, in calculating the appropriate sentencing range, made
forbidden findings of fact. The court repeatedly stated that the Guidelines were mandatory. See id.
The court also erred when it determined that Brown’s involvement in an armed robbery some three
weeks prior to his arrest for the firearm offense was conduct relevant to the firearm offense to which
he pled guilty in this case. We hold, however, that, as we explain below, under the harmless error
standard of review that is appropriate in this case, we are “certain” these errors did not affect the
district court’s selection of the sentence imposed.
                                                  IV.
         It is apparent that Brown suffered no harm either from the court’s mistaken belief that the
Guidelines were mandatory or its “relevant conduct” factfinding. It is true the district court believed
the Guidelines to be mandatory and improperly enhanced Brown’s basic offense level after finding
the events of the robbery relevant to the firearm offense. Nevertheless, any possible harm from these
errors was nullified when the court later exercised its discretion to grant a substantial upward
departure that increased the sentence considerably above the Guideline recommended range. Stated
differently, it is impossible that the court’s Booker error added so much as one day to Brown’s
sentence beyond what the discretionary upward departure added. Nor does this upward departure
itself raise Booker problems since it was based on Brown’s criminal history and, in any event, was
a discretionary decision by the district court. See Booker, 125 S. Ct. at 750.
         For these reasons we are “certain” that the district court’s belief that the Guidelines were
mandatory and its impermissible factfinding as to Brown’s relevant conduct “did not affect the
district court’s selection of the sentence imposed,” Williams, 503 U.S. at 203, which was based not
upon a supposed mandatory Guideline range, but upon the court’s discretion to depart upward to
reach a more severe sentence. The court’s sentencing errors were therefore harmless.
                                                   V.
        Lastly, even though Brown offers no argument as to how the court might have acted
unreasonably in granting an upward departure, we review Brown’s sentence for reasonableness
under Booker. Christopher, 415 F.3d at 594. A sentence may be unreasonable when the court does
not consider the applicable Guideline range or ignores the factors listed in 18 U.S.C. § 3553(a). Id.
Here, the court considered the applicable Guideline range before departing upward and, in addition,
No. 04-6069          United States v. Brown                                               Page 4


mentioned “deterrence, incapacitation, just punishment, and rehabilitation”—all factors contained
in § 3553(a), as the reasons for the sentence imposed. We conclude that Brown’s sentence is
reasonable.
                                              VI.
       For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
No. 04-6069           United States v. Brown                                                  Page 5


                                   ________________________
                                       CONCURRENCE
                                   ________________________
         RONALD LEE GILMAN, Circuit Judge, concurring. Like my colleagues, I agree that the
district court’s Booker error in sentencing Brown was harmless. I nevertheless write separately
because this court has not previously considered whether a discretionary upward departure can
render a Booker error harmless, and I believe that the issue warrants further analysis.
         Although the district court below applied the Guidelines under the former mandatory regime,
it also considered Brown’s initial Guidelines range of 168-210 months as insufficient to account for
his criminal history. It therefore departed upward by four sentencing levels in light of Brown’s
“long record . . . of violent crimes,” resulting in a Guidelines range of 262-327 months. As a result,
the district court ultimately determined that a sentence of 280 months was the most appropriate
sentence based upon the type of factors enumerated in 18 U.S.C. § 3553(a). The Booker error was
thus nullified when the district court departed upward.
        Cases from other circuits support this conclusion. In United States v. Martinez, 418 F.3d
1130, 1136 (10th Cir. 2005), for example, the Tenth Circuit held that “[a]lthough the district court
may have erred by applying the Guidelines in a mandatory fashion, the error was harmless” because
the district court imposed a discretionary upward departure based on the defendant’s repeated
violations. The Martinez court held that the district court, by exercising its discretion, left the
appellate court with no “reason to think that the district court would have imposed a less severe
sentence in the exercise of his post-Booker discretion.” Id.; see also United States v. Ben, 152 F.
App’x. 414, 416 (5th Cir. 2005) (unpublished) (holding that the government met its burden of
showing harmless error where the district court had concluded that the defendant’s criminal history
was underrepresented and had imposed an upward departure as a result).
        Although other circuits have addressed this issue, the Sixth Circuit has no case discussing
whether an upward departure makes a Booker error harmless. Several of our cases, however, have
discussed the effect of an upward departure in the Booker plain-error context. One of these is United
States v. Webb, 403 F.3d 373, 382-83 (6th Cir. 2005), cert. denied 126 S. Ct. 1110 (2006), where
this court affirmed Webb’s conviction and held that the presumption of prejudice established in the
plain-error context by United States v. Barnett, 398 F.3d 516, 527-29 (6th Cir. 2005), was overcome
by clear and convincing evidence. The Webb court reasoned that because the district court referred
to Webb as a menace, considered (but did not impose) an upward departure, and sentenced him at
the top of the Guidelines range, the district court would not have imposed a lesser sentence even if
it had considered the Guidelines to be advisory only. Id.; see also United States v. Loggins, 136 F.
App’x. 789 (6th Cir. June 6, 2005) (unpublished) (holding that the Barnett presumption was
overcome by clear and convincing evidence where the district court labeled the defendant a
“professional thief” and imposed an upward departure because it considered the initial Guidelines
range inadequate).
         The analysis from Webb and Loggins is helpful, even though the present case requires a
harmless-error inquiry rather than a plain-error inquiry. Those cases make clear that despite the
district court’s belief that the Guidelines were mandatory, the record in a particular case may
indicate that the district court “would have imposed the same sentence, if not a lengthier one, . . .
had the district court known that it was not bound by the Guidelines.” Webb, 403 F.3d at 383.
        The government argues in the present case that any Booker error was harmless because “the
sentence imposed was just and reasonable,” and because it was based on Brown’s history of
recidivism and the violent nature of his crimes. Evidence in the record supports the government’s
No. 04-6069          United States v. Brown                                                  Page 6


contention. As the government argues, the district court concluded that Brown’s “criminal history
category significantly underrepresent[ed] both the seriousness of [his] criminal history and the
likelihood that he [would] commit further crimes,” and the district court detailed at length Brown’s
history of violent offenses. The court also referred to Brown’s “remarkable” level of recidivism,
noted that it did not anticipate that Brown would be able to change his violent behavior, and
determined that 280 months of imprisonment was the most appropriate sentence under the
circumstances.
        Because the district court imposed the upward departure after deciding that the Guidelines-
recommended sentence was inadequate, the Booker error in this case was harmless. The district
court sentenced Brown to 280 months of imprisonment because it thought the sentence appropriate,
not because it felt constrained by the Guidelines. I therefore concur in affirming its judgment.
