Alternate Sentence Saves Pre-Booker Enhancement; Defendant Silence OK Basis for Post-Booker Guidelines Enhancement

US v. Revels: Revels robbed a convenience store of $800 at gunpoint. After he turned himself in, he was convicted of being a felon in possession of a firearm. His pre-Booker Guideline calculations included a four-level increase under USSG 2K2.1(a)(2) for possessing the gun in connection with another felony offense (the robbery). Revels objected to the enhancement on Blakely grounds, which the district court overruled. The district court then sentenced Revels to 120 months in prison - the top of the Guidelines and the statutory maximum for the offense. Nonetheless, in accordance with Hammoud, the district court also announced that it would impose an alternate sentence of 120 month in prison treating the Guidelines as mandatory. Revels appealed.

The court affirmed the sentence, although it found that a Booker Sixth Amendment violation had taken place. Specifically, the court applied the recent Milam decision, holding that Revel's Blakely objection and his failure to object to the facts supporting the enhancement could not be used in a pre-Booker mandatory Guidelines scheme to increase his sentence. The maximum sentence which Revels could have received in that system was only 115 months. Nonetheless, the court found the error harmless because of the 120-month alternative sentence set forth by the district court. Judge Luttig concurred, arguing that Milam did not apply because Revels was specifically asked whether he had any objections to the presentence report and answered "no" and thus had not stood silent.

While relying on Milam to conclude that Sixth Amendment error had taken place, the court also took a step to limit the application of Milam in a post-Booker advisory Guidelines scheme. In fn2, the court states:

Nothing in our decision today disables district courts from using undisputed (though not affirmatively admitted) facts in calculating an advisory Guidelines range. Whereas silence may not render a fact admitted for Booker purposes, it will suffice to render a fact undisputed. . . . 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.

(citations omitted).