The opinion of the court was delivered by: John D. Bates United States District Judge
MEMORANDUM OPINION & ORDER
This criminal action has been remanded by the United States Court of Appeals for the District of Columbia Circuit, consistent with the procedures established in United States v. Coles, 403 F.3d 764, 771 (D.C. Cir. 2005), "for the limited purpose of allowing [this Court] to determine whether it would have imposed a different sentence, materially more favorable to the defendant, had it been fully aware" at the sentencing hearing of the sea change in criminal sentencing law that would follow from the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). On June 5, 2003, a jury convicted defendant Melvin B. Brown of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g), but acquitted him of related charges of possession with intent to distribute phencyclidine ("PCP") and using, carrying, or possessing a firearm in furtherance of a drug-trafficking offense. At Brown's sentencing on August 19, 2003, the Court determined that the applicable sentencing range for the offense under the then-mandatory Federal Sentencing Guidelines was a term of imprisonment between seventy-eight and ninety-seven months, and, taking into account such factors as Brown's prior conduct and the seriousness of the offense, the Court imposed a sentence near the top of that range: ninety-six months, plus three years of supervised release and a special-assessment fee of $100.
Seventeen months later, the Supreme Court decided Booker, which held that mandatory sentencing guidelines violated criminal defendants' Sixth Amendment rights to the extent that they used judicial fact-finding to trigger harsher penalties than otherwise could be imposed based solely on the facts found by the jury or admitted by the defendant. See 543 U.S. at 243-44. To cure that constitutional defect, the Supreme Court excised those portions of the Federal Sentencing Act that obligated judges to adhere to the Guidelines. Id. at 245. Following Booker, the Guidelines now are advisory -- merely one factor (though a significant factor) among several that a Court may consider in "exercis[ing its] discretion to select a specific sentence within a defined range" set by statute. See id. at 233. Booker's remedy thus ensured that a jury's guilty verdict provides constitutional support for a sentence up to the statutory maximum for the offense (notwithstanding the sentencing range recommended by the Guidelines) and also ensured that a sentencing court may consider whatever facts it deems relevant -- subject to limitations imposed by Congress -- in determining the appropriate penalty within the statutorily prescribed spectrum for an offense.
Because "both the Sixth Amendment holding [of Booker] and [Booker's] remedial interpretation of the Sentencing Act ... [applied] to all cases on direct review," id. at 268, and Brown's appeal was pending before the D.C. Circuit when Booker was decided, it was constitutional error for this Court to have used facts that were neither found by the jury nor admitted by the defendant when it sentenced Brown under the mandatory Guidelines regime. By its limited remand, the D.C. Circuit has asked this Court to determine whether that Booker error was prejudicial to Brown -- that is, whether the Court would have imposed a lighter sentence had it applied the Guidelines in an advisory fashion. After careful review of the record and consideration of the memoranda of the parties, the Court answers that question in the negative. Even if the Court had sentenced Brown in accordance with the post-Booker sentencing regime, the result of the sentencing hearing would not have been materially different, and certainly it would not have been more favorable to defendant.
Brown's conviction arose out of events that occurred on December 23, 2002, in the Northeast section of Washington, D.C.*fn1 Shortly after midnight, police officers who were surveilling the 2500 block of Pomeroy Road, an area known for PCP transactions, observed a man wearing a distinctive red and black jacket (later identified as Brown) participating in conduct that was consistent with the sale of drugs -- specifically, approaching automobiles on the street and exchanging objects with individuals in the cars. When the officers saw Brown get into the driver's seat of a parked Ford Focus sedan, they attempted to prevent him from departing by blocking the vehicle with police cruisers. Brown bailed out of the moving car without disengaging the engine and began to flee on foot while the car proceeded to collide with one of the police cruisers. Two officers gave chase and witnessed Brown remove from his jacket pocket a dark-colored metallic object that appeared to be a gun and toss it in the direction of a parked van as he fled. One of the officers abandoned the pursuit and recovered a black handgun from the sidewalk near the van. The police apprehended Brown and, upon searching him, found that he had $1,006 (consisting primarily of $20 bills) in his possession. An inspection of the Ford Focus revealed a small vial, containing 20 milliliters of PCP, stored in a console.
The offense for which Brown was convicted, unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g), carries a maximum prison sentence of ten years. See 18 U.S.C. § 924(a)(2) ("Whoever knowingly violates subsection ... (g) ... of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both."). Under the then-mandatory Federal Sentencing Guidelines, however, the Court determined that Brown was eligible for a term of imprisonment of no more than ninety-seven months (i.e., eight years and one month) and no less than seventy-eight months (i.e., six and a half years). That determination was based on the Court's calculation that Brown fell into criminal-history Category III and that his total offense level under the Guidelines was twenty-six, which included two upward adjustments from the base offense level of twenty: (1) an adjustment of two levels because the handgun was stolen, U.S.S.G. § 2K2.1(b)(4) (2002), and (2) an additional increase of four levels because Brown possessed the firearm in connection with another felony, U.S.S.G. § 2K2.1(b)(5). These upward adjustments relied on judicial findings of fact established by a preponderance of the evidence, and the latter adjustment reflected the Court's conclusion that, more likely than not, Brown had engaged in conduct for which the jury had acquitted him (possession with intent to distribute PCP). Tr. of Sent. Hr'g at 16.
With the case now on a limited remand from the court of appeals, defendant has advanced two principal arguments for why this Court should request a full remand for resentencing: (1) it offends the Sixth Amendment for the Court to consider, as it did, acquitted or uncharged conduct when making factual determinations relevant to selecting the ultimate sentence; and (2) a ninety-six month sentence, even if it falls within the recommended range of the Guidelines, is "greater than necessary" to achieve the penological goals of the Federal Sentencing Act, see 18 U.S.C. § 3553(a). The first argument can be dispensed with summarily. In United States v. Edwards, 427 F. Supp. 2d 17 (2006), this Court examined at length the constitutional implications of considering acquitted conduct for sentencing purposes and concluded that "enhancement of [a] sentence for [a] convicted offense based on relevant acquitted conduct proven only by a preponderance of the evidence does not present a Sixth Amendment violation." Id. at 24. For the reasons fully explained in that opinion, the Court rejects Brown's contention that the Sixth Amendment, as interpreted in Booker, precludes judicial consideration of acquitted conduct (or, for that matter, uncharged conduct) at sentencing.*fn2
If the Court is correct in its conclusion that there is no constitutional obstacle to the consideration of acquitted conduct in determining a sentence within the statutorily prescribed range, the only remaining question is whether, freed from the constraints of the mandatory Guidelines regime, the Court would have deviated from the sentence it imposed based on any of the factual or policy considerations that must be taken into account in post-Booker sentences. Under the post-Booker system, "a sentencing court is required 'to consider Guidelines ranges' applicable to the defendant, but is permitted 'to tailor the sentence in light of other statutory concerns as well.'" United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005) (quoting Booker, 543 U.S. at 245-46). Specifically, the "other statutory concerns" are those specified in 18 U.S.C. § 3553(a), which instructs judges, "in determining the particular sentence to be imposed, [to] consider" the following factors (in addition to the Guidelines and the policy statements of the United States Sentencing Commission):
* "the nature and circumstances of the offense and the history and characteristics of the defendant;"
* the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence to criminal conduct, protect the public from further crimes by the defendant, and provide the defendant with rehabilitation, education and training, and other correctional treatment;
* "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct;" and
* the need to provide restitution to victims.
See 18 U.S.C. § 3553(a). The statute directs sentencing courts to utilize these factors to arrive at a sentence that is "sufficient, but not greater than necessary" to accomplish the stated objectives.
A review of the transcript from the sentencing hearing reveals that the Court addressed nearly all of these factors -- particularly the nature of the offense, the history and characteristics of the defendant, and the need for the sentence to reflect the seriousness of the offense, promote respect for the law, ...