 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 16, 2016                 Decided May 31, 2016

                         No. 14–3037

                 UNITED STATES OF AMERICA,
                         APPELLEE

                               v.

                       HIACHOR KPODI,
                         APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:13-cr-00214-1)


    Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for the appellant. A.J. Kramer, Federal
Public Defender, was with her on brief. Tony Axam Jr.,
Assistant Federal Public Defender, entered an appearance.

    Daniel J. Lenerz, Assistant United States Attorney, argued
the cause for the appellee. Vincent H. Cohen Jr., Acting
United States Attorney at the time the brief was filed, Elizabeth
Trosman and Elizabeth H. Danello, Assistant United States
Attorneys, were with him on brief.

    Before: HENDERSON, SRINIVASAN and MILLETT, Circuit
Judges.
                                 2
    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: After his
May 9, 2013 arrest, Hiachor Kpodi was convicted of
possessing with intent to distribute twenty-eight grams or more
of cocaine base and possession of a firearm by a felon. During
sentencing, the district court considered, as an aggravating
factor, evidence that Kpodi was involved in an unrelated
gunfight even though it had prohibited the Government from
introducing the same evidence during Kpodi’s trial. The court
sentenced Kpodi to 151 months’ imprisonment on the cocaine
possession count and 120 months’ imprisonment on the gun
possession count, to run concurrently. For the reasons that
follow, we vacate and remand for resentencing in light of the
district court’s erroneous reliance on the evidence of the
gunfight.

                        I. BACKGROUND

                                A.

     On May 9, 2013, 1 officers of the District of Columbia
Metropolitan Police Department and the Maryland State Police
searched a residence that Kpodi shared with a roommate.
During the search, police found, inter alia, cocaine base on
Kpodi, cocaine base and Percocet in his bedroom and a loaded
.45 caliber Glock semi-automatic handgun in a kitchen cabinet.
On December 3, a grand jury indicted Kpodi on one count of
possessing with intent to distribute twenty-eight grams or more
of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii) (Count I); one count of possessing with intent to
distribute a detectable amount of oxycodone, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C) (Count II); one count of

    1
        All events occurred in 2013 unless otherwise indicated.
                                  3
possession of a firearm by a felon, 2 in violation of 18 U.S.C.
§ 922(g)(1) (Count III); and one count of using and carrying a
firearm in furtherance of a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1) (Count IV).

    Before trial, in its December 6 Motion to Admit Other
Crimes Evidence (Motion), the Government proffered
evidence of four related events: (1) a July 24, 1997 search of
Kpodi’s then-apartment that produced multiple handguns and
twenty ounces of cocaine; (2) an April 4 report of gun shots
being fired near Kpodi’s house; (3) an April 27 traffic stop and
search of Kpodi’s vehicle that uncovered a loaded .45 caliber
Glock handgun; and (4) an October 30 search of a Silver
Spring, Maryland residence where Kpodi often transacted
business that led to the seizure of ammunition and 280 grams
of crack cocaine. The April 4 shooting forms the factual
gravamen of Kpodi’s appeal.

     On the evening of April 4, Kpodi’s neighbors reported gun
shots near Kpodi’s house. The next day, two residents
reported that bullets had struck their vehicles. During the
ensuing investigation, crime-scene investigators recovered
twenty-nine shell casings near Kpodi’s residence, fourteen of
which were from a .45 caliber handgun—the same caliber as
the handgun subsequently seized in Kpodi’s residence on May
9. 3 On April 24, the police interviewed two witnesses who
saw Kpodi fleeing to his residence and ducking behind



     2
        The parties stipulated that Kpodi had previously been
convicted of a felony. 1/9/14 Trial Tr. 220.
     3
        The shell casings collected during the April 4 shooting, along
with the evidence from the April 27 traffic stop, initiated the
investigation that led to the search warrant executed at Kpodi’s
residence on May 9.
                              4
vehicles while the shootings occurred. In its Motion, the
Government summarized the witnesses’ testimony as follows:

       [O]ne witness reported seeing men running up
       and down the 2200 block of Perry Street while
       the shots were being fired. This witness
       indicated that the witness saw . . . [Kpodi]
       running. A second witness indicated that after
       hearing the gun shots the witness
       observed . . . [Kpodi] running from between
       2220 & 2222’s pathway. This witness also
       stated [Kpodi] . . . ducked close to the vehicles
       parked on the odd side of the street as if he was
       retrieving items, then ran inside his home.

Appellant’s App’x (A.A.) 19. The Government argued that
the .45 caliber shell casings collected near Kpodi’s residence
further established his constructive possession of the .45
caliber handgun recovered during the May 9 search, especially
in view of the witnesses’ reports of seeing Kpodi duck behind
the vehicles purportedly to retrieve the shell casings.
According to the Government’s Motion, the eyewitness
testimony and recovered shell casings showed that Kpodi
possessed a firearm knowingly and intentionally around the
time of his arrest and, accordingly, were admissible under
Federal Rule of Evidence 404(b)(2) as evidence that “bears on
the identity and the intent of the possessor of the firearm as
well as the absence of any mistake or accident regarding its
whereabouts.” A.A. 20. Kpodi disputed the relevance of this
evidence, arguing that neither witness identified any person
(including Kpodi) who fired shots or was holding a gun at the
time the shots were fired but merely observed him on the
neighborhood streets fleeing from the shootings.
                                 5
     During a December 18 hearing, the district court
expressed concern regarding the alleged extent of Kpodi’s
involvement in the events of April 4, stating that it was “quite
vague” and that the evidence merely showed that, “[y]ou have
clarity that Mr. Kpodi . . . [was] on the street”; “that Mr. Kpodi
ran into his house” and that “Mr. Kpodi was ducking behind
cars.” 12/18/2013 Hr’g Tr. 41. The court further explained
that the evidence did not establish whether Kpodi had any
active role in the shootings or was merely fleeing from the gun
shots.

     The court eventually denied the Government’s 404(b)(2)
Motion with respect to the April 4 gunfight, 4 finding that the
“logical leaps” required to establish that Kpodi fired a
later-seized Glock on April 4 were “simply too far,” especially
“since eyewitnesses sufficiently observant to identify the
defendant running on the street failed to see him holding a
gun.” A.A. 55. The court explained that:

        other inferences are just as, if not more, clear:
        that the defendant’s presence in the area was
        due to the fact that he lived there; that the
        defendant was running for shelter in his own
        home to avoid the gunfire; that the defendant
        was ducking behind cars for cover; and
        finally,—and most significantly—that the
        defendant had no gun . . . .

Id. (internal quotation marks omitted). Thus, because of the
“limited and vague eyewitness testimony” that failed to
identify Kpodi as a shooter that night, the district court
reasoned that the “probative value of the April 4, 2013

    4
        The court admitted the evidence of the April 27 traffic stop
and October 30 search but excluded the evidence of the July 1997
search.
                                6
evidence [was] questionable” and its potential prejudicial
effect was “severe” because “[t]he prejudicial effect of having
the jury hear the [G]overnment’s speculation that the defendant
engaged in a gunfight on neighborhood streets in this city, with
all of the attendant risk to the safety of innocent bystanders and
residents, including children, is significant.” Id. at 57–58
(internal quotation marks omitted). Trial began on January 7
and ended on January 10, 2014, with guilty verdicts on Counts
I and III and acquittals on Counts II and IV.

                               B.

      The district court sentenced Kpodi on June 3, 2014.
Kpodi’s Presentence Report (PSR) included the April 4
evidence even though the trial court had excluded it before
trial. Kpodi objected to the district court’s consideration of
that evidence for sentencing, arguing that it was no more
relevant for sentencing than it was for Rule 404(b)(2).

     The court disagreed, reasoning that: (1) the PSR
“describes the shooting incident on the residential streets
around the defendant’s residence on April 4”; (2) “two
eyewitnesses identify the defendant as being involved”; and
(3) “police found bullet casings that matched the same caliber
gun found in the defendant’s residence during the execution of
the search warrant a couple of weeks later.” 6/3/14 Hr’g Tr.
11–12.     After acknowledging that it had denied the
Government’s December 6 Motion, the district court saw “no
reason for exclusion from the PSR of this evidence for
description of the circumstances that led to the investigation
and ultimately to the execution of the search warrant at Mr.
Kpodi’s home.” Id. at 12.

    Later in the hearing, during the court’s discussion of the 18
U.S.C. § 3553 factors, the court addressed the other-crimes
evidence, including the April 4 gunfight:
                              7
       The events leading to the execution of the
       search warrant at the defendant’s house on May
       9th, 2013, while not admitted at trial as being
       too prejudicial, are chilling. We read all too
       frequently in the newspapers when we wake up
       in the morning about innocent bystanders,
       including children, inside their homes being
       accidentally shot by gunfire occurring on the
       streets, and in this case two eyewitnesses
       identified Mr. Kpodi as participating in such a
       gunfight outside his home in D.C. a short time
       before the search warrant was obtained.

       While we don’t know the precise reason for the
       gunfight or the defendant’s precise role in the
       gunfight, what is clear from the defendant’s
       involvement and participation in the gunfight
       combined with the loaded guns found in his
       possession during the [April 27] car-stop in the
       same month as the street gunfight and in his
       D.C. home where he stored his drugs is that he
       was clearly prepared to use a gun as part of his
       illegal drug business.

       To me this is a very important circumstance that
       the association of the defendant’s drug
       conviction with guns that is a very important
       consideration in the Court’s determination of
       which sentence recommendation is appropriate
       in this case.

Id. at 47–48 (emphases added).

    The PSR calculated Kpodi’s base offense level as 32, with
an additional two-level enhancement for possession of a
dangerous weapon, and calculated his criminal history as III.
                                8
The court reduced the total offense level by two due to
mitigating circumstances, resulting in a Guidelines range of
151 to 180 months on Count I and 120 months, the statutory
maximum, on Count III. The court sentenced Kpodi to
concurrent terms of 151 months’ imprisonment on Count I and
120 months’ imprisonment on Count III. Kpodi timely
appealed his sentence. Our jurisdiction arises under 28 U.S.C.
§ 1291.

                         II. ANALYSIS

     Kpodi argues that the district court erred by considering
the April 4 evidence when it sentenced him. The Government
responds that the court did not abuse its discretion in relying on
that evidence during sentencing, notwithstanding it had
excluded the same evidence before trial as unduly prejudicial.
Alternatively, the Government argues that any error was
harmless.

                               A.

     We review Kpodi’s challenge to his sentence for abuse of
discretion, applying the two-step approach from Gall v. United
States, 552 U.S. 38 (2007). First, we “ensure that the district
court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence . . . .” Id. at 51. Second, “[a]ssuming that the
district court’s sentencing decision is procedurally sound,” we
“then consider the substantive reasonableness of the sentence
imposed . . . tak[ing] into account the totality of the
circumstances.” Id.
                               9
     Because a sentence must “not be based on improper or
inaccurate information,” United States v. Lemon, 723 F.2d 922,
933 (D.C. Cir. 1983) (internal quotation marks omitted), we
must determine whether the court relied on “clearly erroneous
facts” in reaching the ultimate sentence, Gall, 552 U.S. at 51.
It is not per se error, however, for the sentencing judge to
consider facts beyond those found by the jury. See United
States v. Watts, 519 U.S. 148, 157 (1997) (“[A] jury’s verdict
of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long
as that conduct has been proved by a preponderance of the
evidence.”); accord United States v. Settles, 530 F.3d 920,
923–24 (D.C. Cir. 2008). “[The clearly erroneous] standard
applies to the inferences drawn from findings of fact as well as
to the findings themselves.” Overby v. Nat’l Ass’n of Letter
Carriers, 595 F.3d 1290, 1294 (D.C. Cir. 2010) (quoting
Halberstam v. Welch, 705 F.2d 472, 486 (D.C. Cir. 1983)).

     According to Kpodi, the district court abused its discretion
when it changed tack between trial and sentencing, reasoning
pre-trial that the witness testimony and shell casings were not
sufficiently probative that Kpodi had fired a weapon or
participated in the April 4 shootings but concluding at
sentencing that Kpodi was prepared to use guns in furtherance
of his illegal drug business in light of the April 4 evidence.
We agree. We have not previously determined whether a
district court may consider Rule 404(b)(2) evidence during
sentencing if it excluded the same evidence as unduly
prejudicial before trial and we need not decide whether a
categorical bar is warranted. Instead, we believe the district
court abused its discretion by relying on a clearly erroneous
inference in sentencing Kpodi.

    During the pre-trial proceedings, the Government
proffered two pieces of evidence to demonstrate that Kpodi
                                10
participated in the April 4 shootings: (1) the .45 caliber shell
casings collected near Kpodi’s house that matched the caliber
of the gun police later found when they searched his residence;
and (2) the testimony of the two witnesses interviewed by the
police. But as the district court explained before trial, this
evidence, standing alone, did not support the Government’s
inference that Kpodi fired a gun during the shootings or held a
weapon while fleeing. According to the court, the eyewitness
testimony was vague—it established only that Kpodi was
nearby when the shooting occurred, ran from the gunshots and
ducked behind a car. The .45 caliber shell casings also did not
advance the Government’s argument—they were not linked
specifically to Kpodi’s gun and therefore had little probative
value with respect to the court’s eventual conclusion that
Kpodi was prepared to use guns in the furtherance of his drug
trade. At best, one witness stated that Kpodi ducked behind
vehicles “as if he was retrieving items,” A.A. 19, but such an
ambiguous statement inadequately supports an inference that
Kpodi in fact picked up shell casings similar to those later
found at the scene, much less that he used or was carrying a
weapon at the time of the shootings. The district court
therefore correctly concluded that “other inferences are just as,
if not more, ‘clear,’ ” A.A. 55; that is, it was just as likely that
Kpodi fled from gunfire and took shelter behind a car.

     The district court’s pre-trial analysis was eminently
reasonable. The court, however, switched course during
sentencing. The court stated that the April 4 incident “shows
that . . . there’s no surprise that he also used [guns],” and “as
[disturbing] as it is, that he would engage in a shootout on the
residential streets of the city.” 6/3/14 Hr’g Tr. 12. During its
section 3553 analysis, the court referred to this evidence as
“chilling,” tying it to “children, inside their homes being
accidentally shot by gunfire occurring on the streets.” Id. at
47–48. Critically, the court claimed that the eyewitnesses
                               11
“identified Mr. Kpodi as participating in such a gunfight,” id.
at 48 (emphasis added), even though the witnesses merely
observed Kpodi fleeing, ducking and appearing to pick up
something from the ground. The court recognized the
uncertainty of Kpodi’s role in the April 4 shootings, stating that
“we don’t know the precise reason for the gunfight or the
defendant’s precise role in the gunfight” but it nevertheless
believed that this evidence, in combination with the admitted
evidence of the April 27 traffic stop and October 30 search,
showed that Kpodi “was clearly prepared to use a gun as part of
his illegal drug business.” Id. at 48. The court noted that the
April 4 evidence was “a very important circumstance” and “a
very important consideration in the Court’s determination of
which sentence recommendation is appropriate.”                 Id.
Nevertheless, in view of the vagueness of the evidence of
Kpodi’s actions on April 4, the district court’s inference that
Kpodi either fired a weapon, was holding a gun while fleeing
or even participated in the April 4 shooting was clearly
erroneous. The district court therefore abused its discretion
by relying on that clearly erroneous inference during
sentencing.

     The Government, however, argues that the district court
did not act inconsistently in its pre-trial analysis and in its
subsequent sentencing. According to the Government, the
district court excluded the April 4 evidence before trial because
the Government failed to adequately support its argument that
Kpodi used a gun during the shooting. The Government
claims that the court’s earlier analysis, however, differs from
its conclusion reached during sentencing that Kpodi
participated in the April 4 shooting, which, in its view, is well
supported by the witness testimony and the recovered shell
casings. See Appellee’s Br. 21 (“Nowhere in its order
addressing the [G]overnment’s motion did the district court
find that appellant had not been involved with or participated in
                                 12
the April 4, 2013, shooting incident (by, for example, picking
up spent shell casings off the ground, or aiding other
individuals who were shooting and/or being shot at).”
(emphasis in original)). 5

     Again, the Government’s argument runs contrary to the
district court’s statements during sentencing. The court did
not conclude that Kpodi “would engage in a shootout” based
solely on the fact he might have bent over to pick up shell
casings; the court plainly viewed him as a shooter based on the
statements it made during sentencing. 6/3/14 Hr’g Tr. 12.
For example, the court discussed the frequency of shootings
that could harm “innocent bystanders, including children.”
Id. at 47. Although it did not “know . . . the defendant’s
precise role in the gunfight,” the court’s discussion of the April
4 event and of Kpodi’s role therein makes clear that Kpodi’s
“participation” did not refer to his cleaning up evidence. Id. at
48. More to the point, the court stated that Kpodi’s
“involvement and participation in the gunfight” supported its
conclusion that he “was clearly prepared to use a gun as part of
his illegal drug business.” Id. (emphasis added). That
inference is supported by neither the witness testimony nor by
the fact that shell casings were recovered near Kpodi’s
residence. The April 4 evidence does not support the
conclusion that Kpodi used a gun in his illegal drug business; at
most it shows that Kpodi lived near the area where the shooting
occurred and might have retrieved evidence. Although the
evidence from the April 27 traffic stop and October 30 search
may ultimately support the district court’s conclusion that
Kpodi had a propensity to use firearms in connection with his

     5
        See also Oral Arg. Recording at 18:20–19:20 (Government
iterating that, even if the evidence did not show that Kpodi fired a
weapon on April 4, it demonstrated Kpodi’s participation in the
shootings by, for example, his picking up shell casings at the scene).
                                  13
drug dealings, the inference that the April 4 evidence
demonstrated that propensity was clearly erroneous. 6

                                  B.

     The Government further argues that any error by the
district court in its consideration of the April 4 evidence was
harmless because the court’s reliance on that evidence did not
affect Kpodi’s sentence. We disagree.

     Under Federal Rule of Criminal Procedure 52(a), “[a]ny
error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” FED. R. CRIM. P.
52(a). If the error affects no constitutional rights, it is
harmless unless it had a “substantial and injurious effect or
influence.” 7 United States v. Powell, 334 F.3d 42, 45 (D.C.

     6
         Even were we to adopt the Government’s argument that the
district court was consistent in its pre-trial conclusion and its
consideration of the April 4 evidence during sentencing, the
evidence would nonetheless fail to support the inference that Kpodi
was prepared to use a gun in furtherance of his drug trade. The only
evidence potentially showing that Kpodi picked up shell casings that
evening was a single witness statement that Kpodi, while fleeing,
“ducked close to the vehicles parked on the odd side of the street as if
he was retrieving items.” A.A. 19. No witness identified him
picking up any item, including shell casings. And the fact that the
shell casings match the type of gun later seized from Kpodi’s
residence is largely irrelevant—the Government did not connect
those recovered shell casings to the gun later seized from Kpodi’s
residence.
     7
        In contrast, “[a] constitutional error is harmless” only “if it
appears ‘beyond a reasonable doubt that the error complained of did
not contribute to the [sentence] obtained.’ ” United States v.
Simpson, 430 F.3d 1177, 1184 (D.C. Cir. 2005) (second alteration in
original) (emphasis added) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). Because the Government fails under both the
                                 14
Cir. 2003) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)). “[I]n most cases, [this] means that the error must
have been prejudicial: [i]t must have affected the outcome of
the district court proceedings.” United States v. Olano, 507
U.S. 725, 734 (1993); see also United States v. Williams, 503
U.S. 193, 203 (1992) (“[O]nce 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.”). However, “[i]f we ha[ve] any doubt as to whether
the    erroneous       understanding     the     District   Court
expressed . . . affected the District Court’s sentencing decision,
we [will] not hold the error to be harmless.” United States v.
Ayers, 795 F.3d 168, 176 (D.C. Cir. 2015). “The government
bears the burden of proving the absence of such an effect.”
United States v. Linares, 367 F.3d 941, 952 (D.C. Cir. 2004).

     We have not previously addressed harmless error in the
context of a sentencing court’s reliance on a clearly erroneous
inference. 8 The Government has nevertheless failed to

more stringent constitutional error and the less stringent
non-constitutional error analysis, we need not determine the
appropriate standard here.
     8
        The United States Court of Appeals for the Fifth Circuit
discussed an analogous situation in United States v. Wright, 24 F.3d
732 (5th Cir. 1994). The district court in Wright granted an upward
departure on the basis of a factual finding—that Wright
constructively possessed a gun—which the court of appeals found to
be clearly erroneous. Id. at 734–35. The court explained that,
“[s]ubtracting that incident from the quantum of facts the court used
in deciding to depart upward, we cannot conclude whether the
sentencing court still would have decided to depart upward and, if so,
by how much. In other words, we cannot conclude that the court’s
error was harmless.” Id. at 736. Wright demonstrates that at least
                                  15
establish that the district court’s discussion of the April 4
shooting did not affect its sentencing decision.             The
Government first argues that the error was harmless because
Kpodi was given a sentence at the bottom of the Guidelines
range. Kpodi requested a below-Guideline sentence because
of, inter alia, his continuing efforts to remain part of his
children’s lives.      The district court recognized this
consideration during its balancing of the section 3553 factors 9
and could have granted a downward departure in its discretion.
The court declined to grant the departure, instead imposing a
sentence at the low end of the Guidelines range. On
resentencing, the court remains free to grant a downward
departure as requested in light of Kpodi’s interest in his family
when rebalancing the section 3553 factors once the April 4
evidence is removed from consideration. But the fact that
Kpodi was sentenced to the bottom of the Guidelines range is


one of our sister circuits has remanded for resentencing on the basis
of the district court’s reliance on a clearly erroneous factual finding.
See also United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en
banc) (“A sentence imposed as a result of a clearly erroneous factual
conclusion will generally be deemed ‘unreasonable’ and, subject to
the doctrines of plain and harmless error, will result in remand to the
district court for resentencing.”). The Government claims that
Wright is distinguishable because the district court in Wright heavily
relied on the erroneous factual finding in granting the upward
departure but the April 4 shooting evidence was only one of multiple
considerations the district court reviewed in reaching the 151–month
sentence. We remain unconvinced that the April 4 evidence played
as minor a role in sentencing as the Government contends.
     9
         See 6/3/14 Hr’g Tr. 49 (“And it is because . . . he has
indicated his concern about playing a role in his kids’ lives, which is
not a newfound calling but one that seems to have been part of his
history so far, that I feel that rather than sentence at the midpoint of
the appropriate Guideline range, I’m going to impose a sentence at
the low end of the Guideline range.”)
                               16
itself insufficient to render the court’s consideration of the
April 4 evidence harmless.

     The Government also argues that the district court’s error
was harmless because the April 4 shooting was one of multiple
incidents that led the court to conclude that Kpodi was likely to
use guns in furtherance of his drug transactions. The
Government’s argument, however, again mischaracterizes the
tone of the sentencing hearing. As discussed, the court stated
that “there’s no surprise that [Kpodi] also used” guns and “that
he would engage in a shootout on the residential streets of the
city.” 6/3/14 Hr’g Tr. 12. The court called the April 4
incident “chilling,” referenced it specifically in discussing the
harm to “innocent bystanders, including children,” and
explained that it was a “very important circumstance” and
“very important consideration” in determining “which
sentence recommendation is appropriate.” Id. at 47–48. The
district court considered the other Rule 404(b)(2) evidence as
well as the April 4 evidence during its balancing of the section
3553 factors but it is a stretch for the Government to claim that
the court’s reference to the April 4 gunfight had no effect on its
“selection of the sentence imposed.” Williams, 503 U.S. at
203. On the basis of the sentencing transcript, we cannot
conclude that the consideration of the April 4 evidence did not
have a “substantial and injurious effect or influence” on
Kpodi’s sentence. Powell, 334 F.3d at 45.

    For the foregoing reasons, we vacate Kpodi’s sentence and
remand for resentencing.

                                                     So ordered.
