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

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                       No. 04-5142
                                                    (D.C. No. CR-03-53-EA)
 WILLIAM DAVID WILLIS,                                    (N.D. Okla.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT       *




Before BRISCOE , LUCERO , and MURPHY, Circuit Judges.


          William Willis appeals his sentence for unlawful possession of a firearm by

a felon in violation of 18 U.S.C. §§ 922g(1) and 924(a)(2). Although originally

indicted for being a felon in possession of a firearm, the government filed two

superceding indictments that added various drug offenses to the firearms offense.

As part of a pretrial agreement, Willis agreed to plead guilty to possession of a

firearm and waived his appeal rights, reserving the right to appeal only ineffective


      The case is unanimously ordered submitted without oral argument pursuant
      *

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
assistance of counsel and sentencing matters. In exchange, the government

dismissed the other charges, and agreed that he should receive a three-level

reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.

       Before sentencing, Willis filed written objections to the pre-sentence report

(“PSR”) 1 and sought a downward departure for atypical conduct not accounted for

under the two applicable Guideline provisions – acceptance of responsibility

(U.S.S.G. § 3E1.1) and aberrant behavior (U.S.S.G. § 5K2.20). Willis did not

challenge either the base offense level or the criminal history score recommended

by the PSR. Finding that the case does not fall outside the heartland of similar

cases, the district court denied the downward departure.

       Willis then filed a motion seeking to have the Sentencing Guidelines

declared facially unconstitutional under Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Green, 346 F. Supp. 2d 259 (D. Mass. 2004). Willis

also made an as-applied challenge to the constitutionality of the Guidelines.   In

denying Willis’s motion, the district court held that the Guidelines could be

applied constitutionally, and that there were “no Blakely issues” because the court

was “not doing any Blakely findings.” Willis was sentenced to 33 months

imprisonment, the middle of the applicable guideline range of 30-37 months, a


   1
     The objections involved the amount of income that Willis would reasonably
expect to earn after release from incarceration. The district court did accept
Willis’s argument on this point and amended the PSR.

                                            -2-
$1000 fine, and three years of supervised release.

       On appeal, Willis argues that the Sentencing Guidelines are invalid or

unconstitutional in their entirety, or as applied, thereby necessitating

resentencing. After supplemental briefing, Willis further argues that the district

court’s consideration of the dismissed charges in its formulation of his sentence

amounted to “a lethal cocktail” requiring a new sentencing hearing under United

States v. Booker, 125 S. Ct. 738, 756 (2005). Our jurisdiction arises under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM.

       In his pre-sentencing motion challenging the Guidelines’ facial

constitutionality, Willis argued that because Apprendi, Ring, and Blakely 2 applied

to the Guidelines, the creation of a mandatory determinate sentencing regime by

the Sentencing Commission constituted an impermissible delegation of

Congressional powers to the Sentencing Commission, and an impermissible

exercise of judicial powers by Congress. In September 2004, the district court


   2
      Ring v. Arizona , 536 U.S. 584 (2002) applied Apprendi v. New Jersey , 530
U.S. 466 (2000), to an Arizona law authorizing the death penalty if a sentencing
judge found one or more of ten aggravating factors, and held that the defendant’s
constitutional rights had been violated because the judge had imposed a sentence
greater than the maximum he could have imposed under state law without the
challenged finding. Ring , 536 U.S. at 603-609. Blakely expanded Apprendi ’s
holdings to a determinate sentencing system similar to the federal Guidelines,
clarifying that “the ‘statutory maximum’ for   Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant .” Blakely v. Washington , 124 S. Ct. 2531,
2537 (2004) (emphasis in original).

                                         -3-
rejected this argument, concluding that Blakely was not implicated because the

court had not engaged in judicial factfinding that changed the upper limit of the

Guideline range to which Willis was exposed.

       In January 2005, the Supreme Court, in United States v. Booker, 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. 738, 756 (2005). The court also expressly rejected the separation-of-powers

argument raised by Willis in his motion. See id. at 754-755. Imposing a global

remedy, the Court excised the two provisions of the Sentencing Reform Act which

mandated the Guidelines application – 18 U.S.C. §§ 3553(b)(1) and 3742(e). Id.

at 764-766. It then instructed courts to sentence in accordance with the factors

listed in § 3553(a), and for appellate courts to review for reasonableness. Id. at

766.

       In his supplemental brief, Willis contends that the district court’s

consideration of the dismissed charges is improper after Booker because such

consideration is not included within the § 3553(a) factors. Willis’s sentence was

not enhanced based on these dismissed charges. Instead the district court noted

their existence at two points during the sentencing hearing, first when he rejected


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Willis’s motion for a downward departure, and again when selecting a sentence

from within the Guidelines range. Recognizing that this issue was not raised

below, Willis argues that in light of Booker this “consideration” is plain error.

We disagree.

      The Supreme Court has recognized that the Sentencing Guidelines did not

divest sentencing courts of their traditional discretion to consider all aspects of

the criminal act at issue and to sentence a defendant accordingly. United States v.

O’Flanagan, 339 F.3d 1229, 1235 (10th Cir. 2003) (citing United States v. Watts,

519 U.S. 148, 152 (1997)). “This is true if the other activities were not charged

in a federal indictment, were charged in the indictment but eventually dismissed,

resulted in acquittal, or if the conduct violated state criminal laws.” Id. Watts

was premised upon 18 U.S.C. § 3661, which the Court stated “codified the

longstanding principle that sentencing courts have broad discretion to consider

various kinds of information.” Watts, 519 U.S. at 151. The statute states:

      No limitation shall be placed on the information concerning the
      background, character, and conduct of a person convicted of an
      offense which a court of the United States may receive and consider
      for the purpose of imposing an appropriate sentence.

§ 3661. We have held in a recent case that § 3661 “remains in full force” after

Booker. United States v. Magallanez, 408 F.3d 672, 684 (10th Cir. 2005).

Additionally as noted by the Court in Watts, Section 1B1.4 of the Guidelines

reflects the policy set forth in 18 U.S.C. § 3661:

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      In determining the sentence to impose within the guideline range, or
      whether a departure from the guidelines is warranted, the court may
      consider, without limitation, any information concerning the
      background, character and conduct of the defendant, unless otherwise
      prohibited by law. See 18 U.S.C. § 3661.

Watts, 519 U.S. at 152. The commentary to Section 1B1.4 addresses an identical

situation to that of Willis:

      A court is not precluded from considering information that the
      guidelines do not take into account in determining a sentence within
      the guideline range or from considering that information in
      determining whether and to what extent to depart from the
      guidelines. For example, if the defendant committed two robberies,
      but as part of a plea negotiation entered a guilty plea to only one, the
      robbery that was not taken into account by the guidelines would
      provide a reason for sentencing at the top of the guideline range and
      may provide a reason for an upward departure.

U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1.B.1.4, cmt. background

(2004). Booker specifically requires sentencing courts to “take account of the

Guidelines together with other sentencing goals.” See Booker, 125 S. Ct. at 744

(discussing § 3553(a)(4)). Because consideration of dismissed offenses is

specifically authorized by § 3661 and by U.S.S.G. § 1B1.4, Willis’s argument that

these considerations are not authorized under § 3553(a) fails. We next turn to the

Booker error alleged.

      Booker applies to Willis’s case because it was pending direct review when

Booker was decided. Id. at 769; Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

Because the judge did not perform any judicial factfinding in formulating Willis’s


                                         -6-
sentencing range, there was no Sixth Amendment violation. Nevertheless, the

Supreme Court has instructed, “in cases not involving a Sixth Amendment

violation, whether resentencing is warranted or whether it will instead be

sufficient to review a sentence for reasonableness may depend upon application of

the harmless-error doctrine.” Booker, 125 S. Ct. at 769.

      Because Willis raised the Blakely issues in the court below, they have been

preserved for appeal, and we evaluate for harmless error. “A non-constitutional

error is harmless unless it had a ‘substantial influence’ on the outcome or leaves

one in ‘grave doubt’ as to whether it had such an effect.” United States v. Rivera,

900 F.2d 1462, 1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United

States, 328 U.S. 750, 765 (1946)). The district court sentenced Willis under the

Sentencing Guidelines, viewing them as mandatory. Booker makes clear that they

are not. As a result, Willis’s sentence was imposed as a result of an incorrect

application of the guidelines, and is therefore error. See United States v.

Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir. 2005). Moreover, if a sentence

was imposed either in violation of law or as a result of an incorrect application of

the guidelines, then remand is required under § 3742(f)(1), 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.” Id.

at 1143 (quoting Williams v. United States, 503 U.S. 193, 203 (1992). In


                                          -7-
Williams, the Court stated: “in determining whether a remand is required under

§ 3742(f)(1), a court of appeals must decide whether the district court would have

imposed the same sentence had it not relied upon the invalid factor or factors.”

Williams, 503 U.S. at 203.

      Willis contends that Labastida-Segura squarely controls this case because

we simply do not know what the district court would have done after hearing from

the parties. Labastida-Segura, 396 F.3d at 1143. The government, however,

asserts that this case differs from Labastida-Segura in several respects. First,

unlike Labastida-Segura, the district court rejected Willis’s motion for a

downward departure based on analogous atypical conduct, specifically noting that

Willis had prior felony convictions, a criminal history which involved drugs, and

that absent the existence of the plea agreement, Willis would have “been facing a

lengthier sentence if convicted of the other counts.” Finally, the government

argues, Willis was sentenced in the middle of the guidelines range, rather than at

the bottom of the range as was Labastida-Segura.

      Because Willis can assert only non-constitutional Booker error, it is the

mandatory nature of the sentencing that must be the focus of our harmless error

analysis. Willis raised three points in his argument for a downward departure

based on analogous factors, relying largely on United States v. Nunemacher, 362

F.3d 682 (10th Cir. 2004). He first argued that his possession of the firearm was


                                         -8-
of limited duration because after he received it as payment for doing work he took

it immediately to his brother for safekeeping and retrieved it only to consummate

the sale of the weapon to a third party and did not use it or menace anyone with it.

Second, Willis contended that he voluntarily terminated his possession of the

firearm long before the police became aware of his possession, and cooperated

with the police when they came to execute the search warrant providing

information that led the police to the ultimate purchaser of the firearm. Finally

Willis claimed that he had shown substantial post-offense rehabilitation by

passing all drug tests and working hard for his brother as a construction worker.

His brother testified that he had been an excellent worker. At sentencing

however, the court decided that pursuant to U.S.S.G. § 5K2.0(c), “[t]he Court may

depart only if the offender characteristics or other circumstances makes the case

exceptional and each characteristic or circumstance is present to such a degree

and identified in the guidelines as a permissible ground for departure, even if not

ordinarily relevant to a determination of whether a departure is warranted.” The

district court discussed and rejected each ground presented by Willis to justify the

departure and concluded that Willis’s conduct did not meet that high standard. At

sentencing, the government argued for a sentence at the top of the guideline

range, while Willis argued for one at the bottom. The record makes clear that the

district court rejected Willis’s arguments that his case fell outside the heartland


                                          -9-
on the merits, stating that “[b]ecause there are no particularly aggravating or

mitigating circumstances, a sentence near the middle of the guidelines range is

appropriate.”

      Clearly “under the new post-Booker framework, the district court is

empowered with greater discretion to consider the factors provided in 18 U.S.C.

§ 3553(a) in determining a proper sentence.” United States v. Barnett, 398 F.3d

516, 528 (6th Cir. 2005). The district court’s rejection of the factors that Willis

advanced under the high standard of § 5K2.0(c) does not necessarily mean that it

would assign no weight to these same arguments in a purely discretionary

sentencing decision. But we are also faced with the fact that, in the face of this

evidence, the district court did not exercise what discretion it did possess to

sentence Willis at the bottom of the applicable Guidelines range.

      Thus, in our analysis of the record to determine whether the Booker error in

this case was harmless, we must balance the district court’s non-exercise of its

existing discretion and its clear rejection that Willis’s arguments met § 5K2.0’s

enhanced standard for a downward departure, with the inherent difficulty of

predicting what weight the court would have assigned these factors in a purely

discretionary regime, and the reality of the pre-Booker sentencing landscape

having resulted in “no opportunity or incentive, as there is now post-Booker, for

[the defendant] or the government to present evidence or arguments outside the


                                         -10-
bounds allowed by the Guidelines.” Gonzalez-Huerta, 403 F.3d at 751 (Briscoe,

J., dissenting). On appeal, Willis advances no new evidence beyond that already

presented to the sentencing court. We recognize the government bears the burden

to demonstrate that the mandatory nature of the pre-Booker sentencing regime did

not influence the district court’s selection of the sentence. After carefully

considering the record as a whole, in the context of the district court’s rejection

of Willis’s downward departure motion following a full evidentiary hearing on the

elements that Willis contended were relevant, and the court’s decision to sentence

Willis in the middle of the Guidelines range, we conclude the government has met

its burden.

      Accordingly, we AFFIRM.

                                                ENTERED FOR THE COURT


                                                Carlos F. Lucero
                                                Circuit Judge




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