The 10th Circuit speaks on harmless error!

With thanks to Howard Bashman of How Appealing for sending along the case, late tonight the 10th Circuit posted its first Booker ruling, US v. Labastida-Segura, No. 04-1311 (10th CIr. Feb. 4, 2005) (available here). Marking a sharp contrast from the 11th Circuit's plain error work in Rodriguez (which I am still thinking through), the 10th Circuit in Labastida-Segura is seeing the world through a more defense-oriented view:

We must apply the remedial holding of Booker to Mr. Labastida-Segura's direct appeal even though his sentence does not involve a Sixth Amendment violation. The [Supreme] Court has indicated that harmless error may be considered in such cases (thereby obviating the need for resentencing).  Fed. R. Crim. P. 52(a) provides that "[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."  In the context of a misapplication of the guidelines under 18 U.S.C. § 3742(f)(1), the Supreme Court held that "once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate 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."  Williams v. United States, 503 U.S. 193, 203 (1992) (citing Fed. R. Crim. P. 52(a)); see also 28 U.S.C. § 2111.

The district court plainly sentenced Mr. Labastida-Segura under the Sentencing Guidelines viewing them as mandatory. Although the Supreme Court indicated that not every guideline sentence contains Sixth Amendment error, and not every appeal requires resentencing, Booker, 2005 WL 50108, at *29, in this case (where the error was properly preserved) we cannot conclude that the error is harmless.  See United States v. Urbanek, 930 F.2d 1512, 1515-16 (10th Cir. 1991) (where court did not say whether the sentence would be the same with or without improper adjustment, remand was required).  Here, where it was already at the bottom of the guidelines range, to say that the district court would have imposed the same sentence given the new legal landscape (even after consulting the Sentencing Guidelines in an advisory capacity) places us in the zone of speculation and conjecture: we simply do not know what the district court would have done after hearing from the parties. Though an appellate court may judge whether a district court exercised its discretion (and whether it abused that discretion), it cannot exercise the district court's discretion.  See Martinez v. Potter, 347 F.3d 1208, 1211-12 (10th Cir. 2003).

REMANDED.