The opinion of the court was delivered by: John D. Bates United States District Judge
This case is before this Court on remand for resentencing. In a March 2, 2005, order, the D.C. Circuit instructed this Court to resentence defendant in accordance with its April 16, 2004 opinion in this case (agreeing with the parties that certain issues require resentencing, and rejecting other arguments raised by defendant for the first time on appeal), see United States v. Gabriel, 365 F.3d 29 (D.C. Cir. 2004), and with the decision of the Supreme Court in United States v. Booker, 125 S.Ct. 738 (2005). Defendant now contends that this Court should also address on remand a sentencing argument that the D.C. Circuit already considered and rejected on appeal under a plain error standard -- that the government had failed to prove that the defendant's prior convictions for burglary in 1986 were a"crime of violence" within the meaning of the relevant section of the Sentencing Guidelines.
Following full briefing and argument of the parties, this Court explained its view at the April 14, 2005, resentencing of defendant that it could not reconsider the question of whether the 1986 burglary convictions were a"crime of violence." The Court proceeded to calculate an (advisory) Guidelines range of 51 to 63 months, and sentenced defendant at the bottom of that range. The Court explained at the hearing that it would issue a decision describing in greater detail the reasoning behind its conclusion that it lacked the authority to address the issue anew. The Court sets out its reasoning herein.
Defendant was arrested on April 18, 2002, when officers found at his residence (among other things) a sawed-off shotgun, a handgun, ammunition, and heroin. On October 9, 2002,*fn1 following a jury trial, he was convicted of two counts of unlawful possession of a firearm or ammunition by a convicted felon under 18 U.S.C. § 922(g), one count of possession of heroin under 21 U.S.C. § 844(a), and one count of possession of an unregistered firearm under 26 U.S.C. § 5861(d). On March 12, 2003, this Court sentenced defendant to 83 months imprisonment, three years supervised release, a total assessment of $325, and a fine of $2,000. The sentence was based on a United States Sentencing Guidelines offense level calculation of 26 under U.S.S.G. § 2K2.1 and a criminal history category of III, resulting in a sentencing range of 78 to 97 months.
Defendant took an appeal from the conviction and the sentence. On appeal, the government conceded that the case should be remanded for resentencing for two reasons. First, the government agreed that the two convictions for the section 922(g) counts should have merged such that the defendant should have been sentenced only on one of the counts. Second, the government admitted that a 1981 burglary conviction was too old to qualify as a"crime of violence" for purposes of calculating defendant's offense level under U.S.S.G. § 2K2.1 in light of the commentary to that section. In an opinion dated April 16, 2004,*fn2 the Court of Appeals agreed that resentencing would be necessary on these issues. See Gabriel, 365 F.3d at 30. The court then turned to two other issues on which the parties differed.
The first issue involved the empaneling of a juror who lived near the defendant's home. The court rejected defendant's contention that the failure to strike the juror was error; this holding is not germane to the present dispute. See id. at 30-31. The second issue concerned whether the Court was correct to treat defendant's two 1986 convictions for burglary as a"crime of violence" for purposes of calculating his offense level under section 2K2.1. See id. at 31-33.*fn3 The Guidelines define a"crime of violence" as an offense punishable by more than a year in prison that"has as an element the use... of physical force against another," or is a"burglary of a dwelling" or one of several other listed offenses not relevant here. U.S.S.G. § 4B1.2(a). Defendant's 1986 convictions were for second degree burglary under the D.C. Code, an offense that does not require the use of force against another, and is not confined to burglary of a dwelling. See Gabriel, 365 F.3d at 32.
Drawing on relevant precedent, the court explained that the conviction could still meet the Guidelines definition of a"crime of violence" if"the jury had been required to find, or if documents in connection with a plea showed, that the burglaries (or one of them) were of a'dwelling.'" Id. at 32. The court noted that the government had failed to submit any documents that could be used to show that it was a dwelling that was burglarized (such as"a judgment of conviction, a plea agreement or other statement by the defendant on the record, presentencing report adopted by the court, and the findings of the sentencing judge"). Id."As the burden is on the government to produce these documents," the court concluded,"use of the convictions to establish the'base offense level' was error." Id. at 33.
But defendant had"raised no objection" at sentencing to the inclusion of the 1986 burglary convictions as a"crime of violence," and the court explained that it was therefore required to assess the issue"under the standard of plain error." Id. Applying this standard, the court held that defendant could not demonstrate a"reasonable likelihood" that the error had affected his sentence. The court concluded its opinion as follows:"Accordingly,*fn4 we remand for resentencing because of the errors that the parties agree require a remand; in all other respects the decision of the district court is affirmed." Id.
The D.C. Circuit issued its mandate to this Court on June 16, 2004. A month later, defendant filed a petition for a writ of certiorari to the Supreme Court. Shortly thereafter, this Court held a hearing at which it continued the resentencing of defendant and asked the parties to brief their views on the implications of the Supreme Court's then recently issued decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). This Court also noted that the second § 922(g) count would be vacated for resentencing and that the parties' agreement that the 1981 conviction should no longer count as a"crime of violence" would result in a reduction of defendant's offense level to a 22.
The parties filed briefs on the Blakely issues in the case. Defendant argued that his initial sentence ran afoul of Blakely because it was based on several findings that were not made by the jury beyond a reasonable doubt, including the finding that the 1986 burglary convictions constituted a"crime of violence." Def. Mem. in Aid of Resent. at 3-4. In a footnote, defendant observed that"this Court at sentencing did not have an indictment or jury instructions from Mr. Gabriel's prior offense and the presentence report did not clarify whether the offenses of conviction involved burglary or a dwelling." Id. at 5 n.2. The government responded by arguing that Blakely was inapplicable to this case. In light of the Supreme Court's pending consideration of the application of Blakely to the Sentencing Guidelines, resentencing in the case continued to be postponed.
On January 12, 2005, the Supreme Court issued its decision in United States v. Booker, holding that the mandatory application of the Sentencing Guidelines is unconstitutional, and that a court must"consider Guidelines ranges" applicable to the defendant, but is permitted"to tailor the sentence in light of other statutory concerns as well." 125 S.Ct. at 756-57. Two weeks later, the Supreme Court issued the following order in this case:"Motion to proceed in forma pauperis and petition for a writ of certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Booker, 543 U.S. ___ (2005)." On February 8, 2005, the D.C. Circuit issued its own order recalling its mandate from this Court:"It is ordered, on the court's own motion, that the court's mandate issued on June 16, 2004, be recalled. The Clerk of the United States District Court for the District of Columbia is requested to return the mandate forthwith." Order of Feb. 8, 2005.
On March 2, 2005, the Clerk of this Court returned its mandate to the D.C. Circuit. Later that day, the D.C. Circuit issued an order stating, in its entirety:
Upon consideration of the joint motion for remand and to expedite return of the mandate, it is ordered that the motion be granted. It is further ordered, on the court's own motion, that the court's judgment filed April 16, 2004, be vacated. It is further ordered and adjudged that the judgment of the district court appealed from in this cause be affirmed in part and the case remanded for further proceedings in accordance with this court's opinion issued April 16, 2004, and the Supreme Court's opinion in United ...