455 F.

3d 448

UNITED STATES of America, Plaintiff-Appellee,

v.
Joseph Junior REVELS, Defendant-Appellant.
No. 05-4142.

United States Court of Appeals, Fourth Circuit.

Argued February 3, 2006.
Decided May 1, 2006.

ARGUED: Stephen Clayton Gordon, Assistant Federal Public Defender,

Office of the Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Office of the United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: Thomas P. McNamara, Federal Public Defender,
Raleigh, North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Christine Witcover Dean, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in
which Judge MICHAEL joined. Judge LUTTIG wrote an opinion
concurring in the judgment.
OPINION
WILKINSON, Circuit Judge.

Joseph Revels brings this challenge under United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to the district court's application
of a four-level sentencing enhancement and its imposition of a 120-month
sentence under the then-mandatory Sentencing Guidelines. We hold that the
district court committed Sixth Amendment error because the facts underlying
the four-level enhancement were neither admitted by the defendant nor proved
to a jury beyond a reasonable doubt. But we also hold that because the district
court issued an alternative identical sentence treating the Guidelines as advisory

only, any error was rendered harmless. We therefore affirm the judgment of the
district court.
I.
2

On December 20, 2002, defendant Joseph Revels and an accomplice robbed a

convenience store in Rowland, North Carolina. Revels concealed his face with
a slotted mask, brandished a.25 caliber handgun, and fled with $800 in cash. He
later turned himself in to authorities, provided a recorded confession, and
identified his accomplice.

Revels was charged with possession of a firearm by a convicted felon, see 18

U.S.C. 922(g)(1), 924(a)(2) (2000), and pleaded guilty. At his plea hearing
on September 20, 2004, the district court informed him that his sentence would
be calculated after completion of a presentence report (PSR). It further
instructed Revels to review the PSR, and reminded him about the proper
procedures for raising objections to the facts contained therein.

The PSR recommended a base offense level of 24, see U.S. Sentencing
Guidelines Manual 2K2.1(a)(2) (2003), and a four-level enhancement for use
or possession of a firearm in connection with another felony offense, namely,
the convenience store robbery, see id. 2K2.1(b)(5). The PSR also
recommended a three-level reduction for acceptance of responsibility. See id.
3E1.1(b). The final offense level was therefore 25. Combined with a proposed
criminal history category of V, the specified Sentencing Guidelines range was
100 to 120 months imprisonment, as capped by the statutory maximum in 18
U.S.C. 924(a)(2). As relevant here, defendant filed a written objection to the
four-level enhancement, contending that the facts forming the basis for the
enhancement "were neither admitted to during a plea or presented to a jury," in
contravention of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004).

At his sentencing hearing on January 4, 2005, Revels testified that he had read
the PSR and discussed it with his lawyer. He renewed his Blakely objection,
which the district court overruled. The district court thereafter asked defendant
if he had "any objections to anything contained or omitted from the report," and
defendant responded "No, sir." Adopting the findings in the PSR as credible
and reliable, the district court sentenced defendant to 120 months in prison and
three years of supervised release. Pursuant to our decision in United States v.
Hammoud, 381 F.3d 316, 353-54 (4th Cir.2004) (en banc), the district court
also prescribed an alternative identical sentence under 18 U.S.C.A. 3553(a)
(West 2005), treating the Guidelines as advisory only. In Hammoud, 381 F.3d

at 353-54, we advised lower courts to announce an alternative sentence under

3553(a) in the event that as actually came to pass the Supreme Court
applied its holding in Blakely to the federal Sentencing Guidelines, see United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 746, 160 L.Ed.2d 621 (2005).
II.
6

Revels contends on appeal that the district court's four-level enhancement for
his use or possession of a firearm in connection with the robbery is
unconstitutional under Booker. According to defendant, his maximum
Guidelines sentence absent the enhancement would be 115 months, and the
district court improperly augmented his sentence by five months on the basis of
facts not presented to a jury or admitted by him, in violation of the Sixth
Amendment. The government responds that Revels admitted the facts
underlying the four-level enhancement. Circuit precedent forecloses the
government's argument, and we thus agree with defendant on this issue.

In Booker, the Supreme Court held 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." 125
S.Ct. at 756. Admissions may take a variety of forms, including guilty pleas
and stipulations, see Blakely, 542 U.S. at 304, 310, 124 S.Ct. 2531, a
defendant's own statements in open court, see, e.g., United States v. Henry, 417
F.3d 493, 495 (5th Cir.2005) (per curiam), and representations by counsel, see,
e.g., United States v. Devono, 413 F.3d 804, 805 (8th Cir.2005) (per curiam);
United States v. Bartram, 407 F.3d 307, 310-11 (4th Cir.2005) (opinion of
Widener, J.); id. at 315 (Niemeyer, J., concurring in part and concurring in the
judgment). However a defendant admits to facts, they may serve once admitted
as the basis for an increased sentence without being proved to a jury beyond a
reasonable doubt. See Booker, 125 S.Ct. at 756.

In assessing whether a defendant has made an admission for Booker purposes,

verbalizations necessarily fall along a spectrum. On one end of the spectrum
are statements such as "I admit," or the functional equivalent thereof. These are
clearly admissions under Booker. See, e.g., United States v. Morrisette, 429
F.3d 318, 323 (1st Cir.2005) (defendant admitted facts where, inter alia, he and
his counsel "both conceded the accuracy of the prosecution's recitation of the
facts relevant to the offense"); Devono, 413 F.3d at 805 (defendant admitted
facts where, inter alia, defense counsel stated "`we believe[ ] that the facts [in
the PSR] are true'"). On the other end of the spectrum is silence. In United
States v. Milam, 443 F.3d 382, 385 (4th Cir.2006), we held that a defendant's

failure to object to facts in his PSR did not constitute a Booker admission. In
Milam, the defendant "stood silent when the court adopted the finding" that
enhanced his sentence, and we explained that "[t]o presume, infer, or deem a
fact admitted because the defendant has remained silent ... is contrary to the
Sixth Amendment." Id.
9

Though the case before us falls somewhere in the middle of the spectrum, it is
closer to Milam than to an affirmative admission, and Milam accordingly binds
us here. The district court asked defendant whether he had objections to
anything contained or omitted from the PSR, and defendant replied "No, sir."
While this single statement is more than the silence in Milam, it remains the
only evidence that defendant admitted brandishing a gun during a robbery. The
defendant did, moreover, properly raise a Blakely objection to the
constitutionality of the judicial factfinding procedure. Taken as a whole, the
facts are thus not sufficiently distant from Milam, and we must hold that Revels
did not admit the facts underlying his four-level sentencing enhancement.1 The
district court accordingly increased Revels's sentence beyond that prescribed in
the Guidelines on the basis of facts neither admitted by him nor proved to a jury
beyond a reasonable doubt. See Booker, 125 S.Ct. at 756. This was Sixth
Amendment error. United States v. Hughes, 401 F.3d 540, 547-48 (4th
Cir.2005).2

III.
10

There remains the question of whether the Sixth Amendment error was
prejudicial to the defendant in light of the district court's announcement of an
alternative identical sentence treating the Guidelines as advisory only. See
Hammoud, 381 F.3d at 353-54. Our inquiry, as Booker made clear, is guided by
the "ordinary prudential doctrines" of harmless and plain error. Booker, 125
S.Ct. at 769; see also United States v. Rodriguez, 433 F.3d 411, 415 (4th
Cir.2006) (applying harmless error review); Hughes, 401 F.3d at 547 (applying
plain error review). Because defendant raised a proper objection below, we
review for harmless error. See United States v. Olano, 507 U.S. 725, 734, 113
S.Ct. 1770, 123 L.Ed.2d 508 (1993); Rodriguez, 433 F.3d at 415. Under
harmless error review, the government must show that any constitutional error
did not actually affect the outcome of the proceedings. See United States v.
Dominguez Benitez, 542 U.S. 74, 81 & n. 7, 124 S.Ct. 2333, 159 L.Ed.2d 157
(2004); see also Hughes, 401 F.3d at 548. In the context of Sixth Amendment
Booker error, the question is thus whether as a result of such error, Revels's
sentence "was longer than that to which he would otherwise be subject." Id.

11

We conclude the government has met its burden here. Following our

recommendation in Hammoud, 381 F.3d at 353-54, the district court indicated

that if the Guidelines were non-mandatory, it would have imposed the same
120-month sentence pursuant to the factors in 18 U.S.C.A. 3553(a). No
guesswork on our part is thus required to conclude that any Booker error did not
"actually affect[] the outcome of the proceedings." Hughes, 401 F.3d at 548.
The 120-month sentence was not "longer than that to which [Revels] would
otherwise be subject," because the district court stated that Revels would be
otherwise subject to the same sentence. Id. The two sentences the district court
announced were, moreover, both issued only after the district court considered
defendant's various requests for a lower sentence and after it stated that the
findings in the presentence report were credible and reliable. The district court
had also informed defendant at his plea hearing that it planned to set forth an
alternative sentence under Hammoud. Revels thus had an opportunity to raise
arguments that might have influenced the district court's consideration,
unconstrained by the mandatory nature of the Guidelines. See United States v.
Knows His Gun, 438 F.3d 913, 919-20 (9th Cir.2006).
12

Because any error was harmless, a remand for resentencing is not necessary.
Such a remand would, in any event, be little more than an empty formality, for
the sentence the district court would impose on remand is a foregone
conclusion. See United States v. Christopher, 415 F.3d 590, 594 (6th Cir.2005)
("[W]here the district court makes clear that its sentence would remain the
same even without mandatory guidelines, we do not need to read any tea leaves
to determine what the district court would do on remand.") (internal quotation
marks omitted). It therefore comes as little surprise that virtually every circuit
to have addressed the issue has concluded that an alternative identical sentence
treating the Guidelines as advisory renders harmless any Booker error. See, e.g.,
United States v. Hill, 411 F.3d 425, 426 (3d Cir.2005); United States v.
Saldana, 427 F.3d 298, 314-15 (5th Cir.2005); United States v. McBride, 434
F.3d 470, 473 (6th Cir.2006); United States v. Bassett, 406 F.3d 526, 527 (8th
Cir.2005) (per curiam); United States v. Robles, 408 F.3d 1324, 1326-27 (11th
Cir.2005) (per curiam); United States v. Simpson, 430 F.3d 1177, 1190-91
(D.C.Cir.2005); see also United States v. Knows His Gun, 438 F.3d 913, 91718 (9th Cir.2006). We join this authority here.

IV.
13

For the foregoing reasons, the judgment of the district court is

14

AFFIRMED.

Notes:
1

In seeking to distinguish this case fromMilam, our concurring colleague

attaches no significance to the defendant's Blakely objection, which expressly
stated that the facts forming the basis for his four-level enhancement "were
neither admitted to during a plea or presented to a jury," an objection that was
again raised only moments before his "No, sir" response. The differences
between a failure to object through silence and a failure to object with a brief
"No, sir," coupled with a Blakely objection that the critical facts were not
admitted, are not sufficient to distinguish this case from the Milam decision.
Indeed, holding the defendant to have admitted a fact that his Blakely objection
would indicate that he did not admit is, to say the least, perplexing.
The district court both here and in Milam underscored with each defendant the
importance of the PSR. See Milam, 443 F.3d at 383. To the extent that it is
reasonable to hold the defendant here to his "No, sir," it would have been no
less reasonable to hold the defendant in Milam to his silence. But of course
Milam did not so hold.

Nothing in our decision today disables district courts from using undisputed
(though not affirmatively admitted) facts in calculating an advisory Guidelines
rangeSee Milam, at 383. Whereas silence may not suffice to render a fact
admitted for Booker purposes, it will suffice to render a fact undisputed. As we
have noted, when a defendant fails to properly object to the relevant findings in
his PSR, the government meets its burden of proving those facts by a
preponderance of the evidence, and the district court "is free to adopt the
findings of the presentence report without more specific inquiry or
explanation." United States v. Terry, 916 F.2d 157, 162 (4th Cir.1990); see
United States v. Williams, 152 F.3d 294, 301 (4th Cir.1998); United States v.
Gilliam, 987 F.2d 1009, 1013-14 (4th Cir.1993); Fed.R.Crim.P. 32(i)(3)(A) (at
sentencing, the district court "may accept any undisputed portion of the
presentence report as a finding of fact"). In other words, nothing about this
decision or Milam affects in any way the district court's calculation of an
advisory Guidelines range after the Booker decision.

15

LUTTIG, Circuit Judge, concurring in the judgment:

16

I would hold that Revels admitted the facts set forth in the PSR when, in
response to a direct question from the court, he affirmed that he had no
objection to any of the facts recited in the PSR. I am unpersuaded by the

majority's reasoning that United States v. Milam compels a contrary conclusion.

It is unclear whether the majority opinion in Milam rested on the defendant's
silence or on his failure to object.1 Today's majority assumes that Milam was a
case of silence, but concludes that this case is governed by Milam because there
is no significant difference between silence and an express disclaimer of
objection. Accepting the majority's assumption as to Milam, I disagree with its
conclusion. There is a world of difference between a defendant's complete
silence with respect to the PSR, on the one hand, and a defendant's affirmative
representation to the court that he has no objection to the facts set forth in the
PSR, on the other. I believe that there is no material difference between the
latter statement and a defendant's statement that he admits the facts contained in
the PSR. Because, in my view, Revels admitted the facts underlying the
enhancement of his sentence, I believe that there was no Sixth Amendment
error.2 Accordingly, I concur in the judgment of the court affirming Revels'
sentence. I do not reach the question whether, had there been Sixth Amendment
error, such error would have been harmless in light of the identical alternative
sentence.

Notes:
1

Compare United States v. Milam, 443 F.3d 382, 387 (4th Cir.2006) ("To
presume, infer, or deem a fact admitted because the defendant has remained
silent ... is contrary to the Sixth Amendment."), with id. ("[T]o presume an
admission of an element of the crime from the failure to object would violate
the well-established protections of the Sixth Amendment against presuming
guilt or a finding of fact against the defendant."), and id. at 387 (Shedd, J.,
concurring in part and dissenting in part) (stating that the defendant in Milam
"affirmatively represented that [he] had no additional objections" to the PSR).

The majority notes, as if it supported its position rather than mine, that the
district court reinforced with Revels the importance of the PSR. But of course,
the fact that the court advised Revels of the importance of the PSR actually
cuts in favor of the conclusion that I reach, namely, that Revels admitted the
facts contained in the PSR when he stated that he had no objection to the PSR.
The majority also claims that I attach no significance to Revels'Blakely
objection. But of course, the Blakely objection expressing Revels' subjective
view that he had not admitted the facts during the plea has no bearing on the
legal question whether his subsequent affirmation that he had no objection to
the PSR constituted an admission of the facts therein.