Wayne T. Dance, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs), Salt Lake City, Utah, for Plaintiff - Appellant.

D. Bruce Oliver, D. Bruce Oliver, L.L.C., Salt Lake City, Utah, for Defendant - Appellee.

Two days later, the Supreme Court decided Blakely v. Washington, 542 U.S. 296 (2004). In light of Blakely, Montgomery moved for reconsideration of the district court's decision to grant an upward departure. Upon reconsideration, the district court presciently held Blakely applicable to the federal sentencing guidelines. United States v. Montgomery, 324 F.Supp.2d 1266, 1269 (D. Utah 2004). Relying on Blakely and Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court decided to "continue to apply the sentencing guidelines, but without additional fact-finding by the Court that might result in an upward enhancement or departure that would result in a sentence above that which would otherwise apply under the guidelines, absent those findings." Montgomery, 324 F.Supp.2d at 1271. Consequently, it vacated the upward departure order, concluding it was a violation of Montgomery's Sixth Amendment rights. Id. at 1272-73. The district court sentenced Montgomery to 57 months, the top of the guideline range.

The government appeals from the district court's decision to vacate the upward departure.⁽²⁾ Exercising jurisdiction under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291, we REVERSE and REMAND.

Discussion

In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the Supreme Court held Blakely applied 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 a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id. at 756. As we stated in United States v. Labastida-Segura, "[w]ere that the only holding of Booker, this appeal would be at an end because it is clear that no Sixth Amendment violation occurred­all operative sentencing facts were admitted." 396 F.3d 1140, 1142 (10th Cir. 2005).

In this case, without the benefit of Booker, the district court reasonably anticipated that the remedy to the Sixth Amendment problem would be to remove the offending practice: enhancement of a sentence based on facts not established by a plea of guilty or a jury verdict. Montgomery, 324 F.Supp.2d at 1271. Despite the straightforward appeal of this approach, however, the Supreme Court did not adopt it in Booker. Rather, "the Supreme Court . . . imposed a global remedy for the Sixth Amendment difficulties with the Sentencing Guidelines, invalidating their mandatory application and instead requiring district courts to consult them in an advisory fashion." Labastida-Segura, 396 F.3d at 1142 (citing Booker, 125 S. Ct. at 756).

The district court committed non-constitutional Booker error in this case by treating the sentencing guidelines, at least in part, as mandatory. United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.), cert. denied, 126 S.Ct. 495 (2005). Under Booker, "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." 125 S. Ct. at 767. The district courts still maintain the ability to depart downward or upward from the sentencing guideline range, so long as the sentence imposed is reasonable in light of the factors in 18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 750, 766-67; United States v. Morales-Chaires, 430 F.3d 1124, 1128 (10th Cir. 2005); see also United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) ("After it has made [the sentencing guidelines] calculation, the district court may impose a more severe or more lenient sentence as long as the sentence is reasonable . . . .").

When non-constitutional Booker error is at issue and the appellant raised the issue below,⁽³⁾ we review whether the error was harmless by a preponderance of the evidence. United States v. Glover, 413 F.3d 1206, 1210 (10th Cir. 2005). Harmless error is that which "'did not affect the district court's selection of the sentence imposed.'" Labastida-Segura, 396 F.3d at 1143 (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). The burden of proving the error is harmless is on "the beneficiary of the error." Chapman v. California, 386 U.S. 18, 24 (1967); United States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005).

Ordinarily, we are concerned with whether the error affects the substantial rights of a defendant. See Fed. R. Crim. P. 52(a); United States v. Olano, 507 U.S. 725, 734 (1993). In this case, however, we are confronted with the question whether the error was harmless to the government--the appellant. United States v. Davila, 418 F.3d 906, 909 (8th Cir. 2005); United States v. Bruce, 413 F.3d 784, 785 (8th Cir. 2005); United States v. Barnett, 410 F.3d 1048, 1052 (8th Cir. 2005). Here, Montgomery has failed to prove the error was harmless. The record clearly indicates the district court would have imposed a higher sentence if it believed it had the discretion to do so. See Labastida-Segura, 396 F.3d at 1143 (holding Booker error was not harmless where the district court sentenced at the bottom of the range). The initial order granting an upward departure, coupled with the district court's eventual sentence at the top of the guideline range, leads us to conclude the error was not harmless, i.e., the court's non-constitutional Booker error did affect its selection of the sentence imposed.

Conclusion

Because the district court believed it was precluded from departing upward from the guideline range, we REVERSE Montgomery's sentence and REMAND for re-sentencing in light of Booker. Montgomery's Motion for Finding of Frivolous Appeal and Award Just Damages is DENIED.

^1. The base offense level was 20. Two levels were added under USSG §2K2.1(b)(1)(A) because the offense involved three to seven firearms, and three levels were subtracted under USSG §3E1.1 for acceptance of responsibility.

^2. The government may appeal the district court's imposition of an otherwise final sentence for, inter alia, "an incorrect application of the sentencing guidelines." 18 U.S.C.§ 3742(b)(2). However, the government must obtain "the personal approval of . . . the Solicitor General . . . ." Id.; see 28 C.F.R. § 0.20(b). The Solicitor General of the United States personally authorized this appeal.

^3. Because both parties agree the harmless error standard applies, we need not decide whether the government's arguments to the district court about the effect of Blakely on the federal sentencing guidelines were sufficient to avoid plain error review.

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