                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                               January 24, 2006
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                           _____________________                    Clerk
                               No. 04-11058
                           ____________________

                       UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                                    v.

                           GREGORY WAYNE WOODS,

                                           Defendant-Appellant.

                            __________________

            Appeal from the United States District Court
                 For the Northern District of Texas
                         __________________

Before DAVIS, SMITH and      DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Gregory Wayne Woods pleaded guilty to a single count of bank

fraud in violation of 18 U.S.C. § 1344.          He appeals his 46-month

sentence pursuant to United States v. Booker, 125 S. Ct. 738

(2005).     Because Woods preserved his claim of error and the

Government cannot demonstrate the error was harmless, we VACATE

Woods’    sentence   and   REMAND   to   the   district   court      for    re-

sentencing.




                                     1
                               I.
      On May 7, 2004, Woods pleaded guilty to one count of bank

fraud, prohibited by 18 U.S.C. § 1344.              A pre-sentence report

(“PSR”) calculated Woods’ total offense level at 19, including a

seven-level    increase    because   the   amount     of   loss   was   between

$120,000 and $200,000, a two-level increase because the offense

involved more than minimal planning, and a four-level increase

because of Woods’ role as an organizer or leader who recruited

and instructed participants in a criminal activity that involved

five or more participants.      A total offense level of 19 combined

with a criminal history category III resulted in a recommended

Sentencing Guideline range of 37 to 46 months of imprisonment.

In addition, the PSR recommended an upward departure because

Woods’ criminal history score under-represented the seriousness

of his criminal history or the likelihood that he would commit

additional crimes.

      Woods objected to the PSR on the basis of Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000), and Blakely v. Washington, 124

S.   Ct.   2531,   2537   (2004),    arguing   that    the   findings     which

resulted in enhancements totaling 13 levels were based on facts

to which he had not admitted nor had been found by a jury.

Nonetheless, the district court adopted the factual findings of



                                      2
the   PSR    and     concluded     that    the    13   level    enhancement        was

appropriate.1        The court did not adopt the PSR’s recommendation

to depart upwardly, however, but stated:                  “Well, it’s a close

call, but I’m not going to upwardly depart in this case.                          I am

going to impose a sentence at the top of the guideline range.”

The district court sentenced Woods to 46 months in prison, the

top of the applicable guideline range including the enhancements.

The court also ordered Woods’ sentence to run consecutively to

any sentence imposed by the state court in an unrelated criminal

proceeding then pending against Woods’, ordered Woods to pay

$129,324 in restitution, and ordered Woods to serve three years

of supervised release.

      Woods now appeals his sentence, arguing that the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738

(2005),     confirms    that     the   sentence    imposed     upon    him   by    the

district     court    violated     the    6th    Amendment.      The    Government

concedes, as it must, that the district court erred by enhancing

Woods’ offense level under the pre-Booker mandatory guidelines

system based on facts to which Woods did not admit and not found


  1
    Woods objected to the facts set forth in the PSR supporting
  the enhancements to which he did not admit.      The district
  court overruled the objection. Woods does not challenge the
  sufficiency of the evidence for the court's factual findings
  or otherwise object to the enhancements themselves on appeal.


                                          3
beyond a reasonable doubt by a jury.             The Government argues,

however, that such an error was harmless, based principally on

the district court’s decision to impose a sentence at the top of

the applicable guidelines range.


                               II.
      When a Sixth Amendment claim under Booker “is preserved in

the district court by an objection, we will ordinarily vacate the

sentence and remand, unless we can say the error is harmless

under rule 52(a) of the Federal Rules of Criminal Procedure.”

United States v. Mares, 402 F.3d 511, 520 n. 9 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005); see also United States v. Olano,

507 U.S. 725, 734 (1993) (noting that harmless error standard

applies when defendant makes timely objection to error).

      “Harmless error is ‘[a]ny defect, irregularity, or variance

that does not affect substantial rights’ of the defendant, and

‘arises when the mistake fails to prejudice the defendant.’”

United States v. Akpan, 407 F.3d 360, 376 (5th Cir.2005) (quoting

FED. R. CRIM. P. 52(a)).       “[T]he government must bear the burden

of demonstrating that the error was harmless by demonstrating

beyond a reasonable doubt that the federal constitutional error

of   which   the   defendant   complains   did   not   contribute   to   the

sentence that he received.”       Id. at 377 (citations omitted); see



                                    4
also Olano, 507 U.S. at 734 (noting that the inquiry to determine

prejudice is the same between plain error and harmless error, but

that the defendant, rather than the government, bears the burden

of   persuasion   with   respect   to   prejudice     under   plain-error

review); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967) (holding that “before 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”).              Put

another way, an error is deemed harmless only if the government

proves beyond a reasonable doubt that it did not affect the

outcome of the district court proceedings.          See United States v.

Pineiro, 410 F.3d 282, 285(5th Cir. 2005).


                                   A.

     The Government points to the fact that the district court

sentenced Woods to 46 months of imprisonment, the top of the

guidelines-determined range, in an attempt to meet its burden

under the harmless error standard. This court has previously

addressed the effect of maximum and minimum sentences within the

guidelines-determined range only in the context of plain-error

review.   In United States v. Rodriguez-Gutierrez, 428 F.3d 201

(5th Cir. 2005), this court observed that prior cases had given

varying weight to the relationship between the actual sentence


                                   5
imposed and the range of sentences provided by the Guidelines,

and noted that “[s]entences that fall at the absolute maximum of

the Guidelines provide the strongest support for the argument

that the judge would not have imposed a lesser sentence.”   Id. at

204.   Similarly, “sentences following at the absolute minimum of

the Guidelines provide the strongest support for the argument

that the judge would have imposed a lesser sentence.”       Id. at

205.   However, we cautioned, “we do not suggest that a defendant

sentenced at the absolute maximum of the range provided by the

Guidelines will never be able to show that his substantial rights

were affected.”   Id.2
  2
   Other Circuits have also found a sentence imposed at the top
  of the Guidelines-determined range to be persuasive evidence
  against substantial prejudice under plain-error review. See
  United States v. Brennick, 405 F.3d 96, 101-02 (1st Cir. 2005)
  (“Given the court's exercise of discretion to sentence at the
  most severe end of the range and its assertion that it would
  have given a more severe sentence if it had the latitude to do
  so, we can see no reasonable probability that the court would
  have sentenced more leniently had it understood that it was
  not constrained by the Guidelines.”); United States v.
  Gonzalez-Mercado, 402 F.3d 294, 304 (1st Cir. 2005) ("When,
  under a mandatory guidelines regime, a sentencing court has
  elected to sentence the defendant substantially above the
  bottom of the range, that is a telling indication that the
  court, if acting under an advisory guidelines regime, would in
  all likelihood have imposed the same sentence."); United
  States v. Mozee, 405 F.3d 1082, 1091-92 (10th Cir. 2005)
  (“Because the court decided to maximize punishment rather than
  exercise leniency where it had discretion, there is no basis
  for us to assume Mr. Mozee would receive a lesser sentence if
  he were resentenced under a discretionary sentencing regime in
  which the district court is required to ‘consider’ the
  guidelines when it exercises its discretion.”), cert. denied,


                                6
       The imposition of a sentence at the maximum end of the

Guidelines-determined        range,      however,    is   less   persuasive       when

considered under the harmless-error standard.                    When a defendant

fails to preserve Booker error with an objection in the district

court, the sentence imposed is reviewed for plain error, and the

burden    is    on   the    defendant      to   demonstrate       “a    probability

sufficient to undermine confidence in the outcome.”                          Id. at

203.     When reviewing for harmless error, however, the Government

bears the burden of proving beyond a reasonable doubt that the

Booker error did not affect the outcome of the district court

proceedings.      See Pineiro, 410 F.3d at 285.

       Although a judge sentencing a defendant at the top of the

applicable range under the pre-Booker sentencing regime may be

enough to prevent that defendant from undermining confidence in

the outcome when reviewed for plain error, it does not follow

that the same sentence is enough to satisfy the burden on the

Government to prove beyond a reasonable doubt that the sentence

would not have been different under the post-Booker advisory

regime.     Instead, the Government must shoulder the heavy burden

of demonstrating that the district court would not have imposed a

different      sentence    under   the    advisory    regime—in        essence,   the


  126 S. Ct. 253 (2005).


                                          7
Government must prove a negative. Such proof is certainly not

impossible, but where the Government’s principal evidence is a

sentence at the top of the range determined by the Guidelines

under   a   mandatory    sentencing    regime,      the   Government       has    not

carried its burden.

      Our conclusion that a sentence imposed at the top of the

Guidelines-determined      range    might    be   sufficient    to    prevent      a

defendant    from   prevailing     under    plain-error     review,    but        not

sufficient to demonstrate that a Booker error was harmless beyond

a reasonable doubt is consistent with the law of at least two

other Circuits.         The Seventh Circuit has recognized the same

distinction in its decisions.          That court found, like this Court

found in Rodriguez-Gutierrez, that a sentence at the top of the

Guidelines-determined      range,     especially     when   combined       with    an

upward departure, prevented a defendant from prevailing under

plain-error review.        See United States v. Cunningham, 405 F.3d

497, 504-05 (7th Cir. 2005).           However, the Seventh Circuit has

also concluded that under the harmless-error standard “even a

term of imprisonment at the top of the range ‘does not rule out

the   possibility   that    the    judge    might   have    imposed    a    lesser

sentence had he known that the Guidelines did not bind him.’”

United States v. Carroll, 412 F.3d 787, 794 (7th Cir. 2005)



                                       8
(quoting United States v. Della Rose, 403 F.3d 891, 907 (7th

Cir.2005)).

     Our decision is also consistent with the law of the Second

Circuit.   In United States v. Lake, 419 F.3d 111 (2d Cir. 2005),

that court addressed the argument made by the Government that a

sentence well above the bottom of the Guidelines-determined range

demonstrated   that   any   Booker       error   was   harmless   beyond   a

reasonable doubt.     The court disagreed, and found that such an

argument overlooks three important aspects of sentencing under

the post-Booker regime:

     First, the fact that a judge selects a sentence within
     a guideline range that the judge thought he was
     required to apply does not necessarily mean that the
     same sentence would have been imposed had the judge
     understood the Guidelines as a whole to be advisory.
     The applicable guideline range provides the frame of
     reference   against   which   the    judge   chooses   an
     appropriate sentence. In this case, for example, Judge
     Block might have thought that once the Commission
     specified the range it deemed appropriate for offense
     conduct like Lake's, the details of Lake's offense
     conduct were sufficiently serious to warrant punishment
     somewhat high in that range, but he might also have
     thought that a somewhat lower sentence would have been
     appropriate if he was selecting a sentence without
     regard to a Commission-prescribed range.          Second,
     although even before Booker, a sentencing judge was
     obliged to consider all the factors set forth in 18
     U.S.C. §   3553(a), the required use of one of those
     factors--the Guidelines--rendered of “uncertain import”
     the significance of the other factors.      Now, without
     the   mandatory   duty   to    apply    the   Guidelines,
     consideration of the other section 3553(a) factors
     “acquires renewed significance,” and might result in a


                                     9
      different sentence.   Third, absent the strictures of
      the Guidelines, counsel would have had the opportunity
      to urge consideration of circumstances that were
      prohibited as grounds for a departure.
Id. at 114.    As the Second Circuit stated in Lake, we cannot say

it is likely that the district court in this case would have

imposed a different sentence upon Woods under the post-Booker

sentencing regime, “but the Government has not shown that the

possibility   is     so   remote   as   to   render   the   sentencing   error

harmless.”    Id.3


                                        B.

      The Government next argues that the district court’s order

that the federal sentence imposed run consecutively with any

sentence imposed in Woods’ pending state criminal proceedings

demonstrates that the Booker error was harmless.              This court has

  3
    The Tenth Circuit has disagreed with this approach, and in
  United States v. Riccardi, that court held that a
  constitutional Booker error was harmless where the district
  court sentenced at the top of the range. See 405 F.3d 852,
  874-75 (10th Cir. 2005), cert. denied, 126 S. Ct. 299 (2005).
  The Tenth Circuit’s decision in Riccardi, however, provides
  little analysis in support of this conclusion, instead relying
  on the Sixth Circuit opinion in United States v. Bruce, an
  opinion that concludes only that a sentence at the top end of
  the Guidelines-determined range was probative under the plain-
  error standard, not the harmless error standard. Moreover,
  the Sixth Circuit’s opinion on these grounds in Bruce was
  later vacated, and the defendant’s sentence vacated and
  remanded for resentencing. See U.S. v. Bruce, 396 F.3d 697,
  720 (6th Cir. 2005), vacated, 405 F.3d 1034 (6th Cir. Apr 07,
  2005). We find the Tenth Circuit’s approach less persuasive
  than that followed by the Second and Seventh Circuits.


                                        10
recognized     that     the       imposition       of    consecutive     sentences     may,

under some circumstances, demonstrate that a Booker error was

indeed harmless.            In an unpublished decision, we determined that

Booker error was harmless where the sentencing court expressly

refused to run the defendant’s federal Guidelines sentence with

his previously imposed state sentence.                      United States v. Prones,

145 Fed. Appx. 481, 482 (5th Cir. 2005) (unpublished); see also

United    States      v.     Garza,    429    F.3d       165,   170     (5th   Cir.   2005)

(identifying imposition of consecutive sentences as one of only

two circumstances in which this court has found Booker error to

be harmless).

      However,     whether         imposition       of    consecutive      sentences     is

sufficient to demonstrate that a Booker error is harmless is a

fact-sensitive inquiry that must examine the relationship between

the two sentences imposed.              In this case, Woods’ PSR reveals that

the charges pending against him in state court were unrelated to

the     federal    charges,          based    on        entirely      unrelated   conduct

occurring      during       a    different     time      period.        This   Court    has

previously said that “consecutive sentencing is an appropriate

mechanism for imposing distinct punishment for separate criminal

acts,    and   that     a       defendant    has    no    right    to   have   concurrent

sentences imposed for two totally unrelated offenses.”                                United



                                              11
States v. Olivares-Martinez, 767 F.2d 1135, 1137 (5th Cir. 1985)

(citations omitted).

      Where the imposition of consecutive sentencing is based or

appears to be based on the unrelated federal and state charges,

we decline to ascribe any motivation to the district court other

than adherence to the default rule that totally unrelated crimes

should   ordinarily    receive    distinct     punishment.       The     mere

imposition   of   consecutive    sentences    for   unrelated   crimes   has

little or no probative value tending to demonstrate that the

Booker error in this case was harmless.


                                    C.

      The Government also points to the fact that the district

court considered and narrowly rejected an upward departure based

on the recommendation of the PSR.4           The fact that the district

court carefully weighed the recommendation of the PSR to impose

an upward departure, and chose not to do so, is not a factor

which proves beyond a reasonable doubt that the court’s Booker

error was harmless.      The court did not impose such an upward

  4
    This recommended departure was based on U.S.S.G. § 4A1.3,
  p.s., which provides that if “reliable information indicates
  that the criminal history category does not adequately reflect
  the seriousness of the defendant’s past criminal conduct or
  the likelihood that the defendant will commit other crimes,
  the court may consider imposing a sentence departing from the
  otherwise applicable guideline range.”


                                    12
departure,      and    his   decision   not    to    do   so   does   not    give   us

confidence      that    the    district     court     would    have    imposed      an

identical sentence under the post-Booker sentencing regime.5


                                          D.

       Finally, the Government argues that the district court’s

Booker error is harmless here because there is no basis in the

record for concluding that Woods would have received a lesser

sentence   if    the    district   court       had   proceeded    under      advisory

guidelines.      This argument, however, misconceives the burden of

proof where the defendant preserves the Booker error with an

objection, as Woods did here.           It is the Government's burden, not

Woods’, to prove that the sentence imposed would be the same.

This    court    previously      rejected      similar     arguments        from    the

Government in United States v. Pineiro, 410 F.3d 282, 285 (5th

Cir.2005) and United States v. Lopez-Urbina, --- F.3d ---, 2005


  5
    Indeed, this court has noted that even a departure actually
  imposed by the district court in some cases may not be enough
  to demonstrate that a Booker error was harmless beyond a
  reasonable doubt. See United States v. Garza, 429 F.3d 165,
  171 (5th Cir. 2005) (“Yet, even a discretionary departure
  decision is informed by the Guidelines and ‘thus sheds little
  light on what a sentencing judge would have done knowing that
  the guidelines were advisory.’”) (quoting United States v.
  Schlifer, 403 F.3d 849, 854 (7th Cir. 2005)); see also Burke
  v. United States, 425 F.3d 400, 417 (7th Cir. 2005). Because
  the district court declined to depart upwardly, we need not
  address that question in this case.


                                          13
WL 1940118, *12 (5th Cir. Aug. 15, 2005), cert. denied 126 S. Ct.

672 (2005).      In Pineiro, this court stated:

      Although this argument would be persuasive under plain-
      error review, this argument fails to show that the
      preserved error was harmless. It is the government that
      must show that the sentencing judge would have imposed
      the same sentence under an advisory sentencing scheme.
      The judge's silence as to whether or not he would have
      imposed a different sentence under an advisory regime
      does not satisfy this burden. If we were to accept this
      argument to find that the error was harmless, we would
      effectively be relieving the government of its burden
      and placing it on the defendant.
Pineiro, 410 F.3d at 286.         As in Pineiro, the Government in this

instance has the burden to prove that the district court's error

was   harmless    by    showing   that    the   district   court    would   have

imposed the same sentence under the post-Booker advisory regime.

Woods’ inability to point to evidence in the record that the

district   court       would   have   imposed    a   different     sentence    is

irrelevant under harmless error analysis. Because it is unclear

whether the district court would have imposed the same sentence,

the error cannot be considered harmless.


                              III.
      The arguments made by the government are insufficient to

demonstrate that the Booker error in this case was harmless.                  The

only factor tending to show that that the district court might

have imposed the same sentence under the post-Booker sentencing



                                         14
regime    is    the     imposition    of     a    sentence    at     the    top    of   the

Guidelines range.            However, for reasons discussed above, such a

sentence       is    insufficient     to   demonstrate        that    the    error      was

harmless.           None of the other factors to which the government

points     have       probative      value,       and     therefore,        even     taken

cumulatively,         fail    to   satisfy       the    government’s       burden.       We

therefore conclude that the government has failed to meet its

burden of showing beyond a reasonable doubt that the district

court would have imposed the same sentence under the post-Booker

advisory       sentencing      regime.           Thus,    Woods      is    entitled      to

resentencing in accordance with Booker.

     For the reasons set forth above, we vacate Woods’ sentence

and remand to the district court for resentencing consistent with

Booker.

VACATED and REMANDED.




                                           15
