United States of America v.  Joseph Junior Revels

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4142 
JOSEPH JUNIOR REVELS,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Senior District Judge.
(CR-03-118)
Argued: February 3, 2006
Decided: May 1, 2006
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 con-
curring in the judgment.
COUNSEL
ARGUED: Stephen Clayton Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, Assis-
tant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, Raleigh, North Car-

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olina, for Appellant. Frank D. Whitney, United States Attorney,
Christine Witcover Dean, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Joseph Revels brings this challenge under United States v. Booker,
125 S. Ct. 738 (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 ren-
dered harmless. We therefore affirm the judgment of the district court.
I.
On December 20, 2002, defendant Joseph Revels and an accom-
plice robbed a convenience store in Rowland, North Carolina. Revels
concealed his face with a slotted mask, brandished a .25 caliber hand-
gun, and fled with $800 in cash. He later turned himself in to authori-
ties, 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. Sen-
tencing Guidelines Manual § 2K2.1(a)(2) (2003), and a four-level
enhancement for use or possession of a firearm in connection with
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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 objec-
tion 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 (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 dis-
trict 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, 125 S. Ct. 738, 746 (2005).
II.
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 admit-
ted by him, in violation of the Sixth Amendment. The government
responds that Revels admitted the facts underlying the four-level
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enhancement. Circuit precedent forecloses the government’s argu-
ment, 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, 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 concur-
ring 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 func-
tional 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 spec-
trum is silence. In United States v. Milam, No. 04-4224, slip op. at 8
(4th Cir. Apr. 6, 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.
Though the case before us falls somewhere in the middle of the
spectrum, it is closer to Milam than to an affirmative admission, and
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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 defen-
dant did, moreover, properly raise a Blakely objection to the constitu-
tionality 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 sentenc-
ing 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
1In seeking to distinguish this case from Milam, our concurring col-
league 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 defen-
dant 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, slip op. at 5. 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.
2Nothing in our decision today disables district courts from using
undisputed (though not affirmatively admitted) facts in calculating an
advisory Guidelines range. See Milam, slip op. at 7. 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
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III.
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 Guide-
lines 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 (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 (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 sub-
ject." Id.
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 sen-
tence was not "longer than that to which [Revels] would otherwise be
subject," because the district court stated that Revels would be other-
wise subject to the same sentence. Id. The two sentences the district
court announced were, moreover, both issued only after the district
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.
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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, uncon-
strained by the mandatory nature of the Guidelines. See United States
v. Knows His Gun, 438 F.3d 913, 919-20 (9th Cir. 2006).
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 cir-
cuit to have addressed the issue has concluded that an alternative
identical sentence treating the Guidelines as advisory renders harm-
less 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, 917-18 (9th Cir. 2006). We join this authority here.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
LUTTIG, Circuit Judge, concurring in the judgment:
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
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he had no objection to any of the facts recited in the PSR. I am unper-
suaded by the majority’s reasoning that United States v. Milam com-
pels 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 con-
cludes that this case is governed by Milam because there is no signifi-
cant difference between silence and an express disclaimer of
objection. Accepting the majority’s assumption as to Milam, I dis-
agree 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 state-
ment and a defendant’s statement that he admits the facts contained
in the PSR. Because, in my view, Revels admitted the facts underly-
ing 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 harm-
less in light of the identical alternative sentence.
1Compare United States v. Milam, No. 04-4224, slip op. at 8 (4th Cir.
Apr. 6, 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 10 (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).
2The 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 consti-
tuted an admission of the facts therein.
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