Case: 14-10623      Document: 00513362973         Page: 1    Date Filed: 02/01/2016




                         REVISED February 1, 2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                      No. 14-10623                             FILED
                                                                       September 24, 2015
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff – Appellee,

v.

KENNY WASHINGTON,

              Defendant – Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:02-CR-287-1


Before DAVIS, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       After we vacated Kenny Washington’s sentence, eight years elapsed
before the district court re-sentenced him.               During those eight years,
Washington served his entire sentence of incarceration and completed a term
of supervised release. All that remains of his original sentence is a restitution



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 14-10623
obligation.      Because the extraordinary delay between remand and re-
sentencing violated Washington’s Sixth Amendment rights, Washington is
entitled to vacatur of the unpaid portion of his restitution obligation.
                                             I.
      In 2003, a district court sentenced Washington to forty-six months of
imprisonment and three years of supervised release for conspiracy to commit
bank theft. Pursuant to the Mandatory Victims Restitution Act (MVRA), the
district court also ordered restitution, to be paid jointly and severally by the
co-conspirators. We affirmed. United States v. Washington, 95 F. App’x 701
(5th Cir. 2004).       In 2005, the Supreme Court vacated our judgment and
remanded for further consideration in light of United States v. Booker, 

(2005). Washington v. United States, 

(2005). After we
received supplemental briefing addressing Booker, we determined that the
government failed to show that the district court would have imposed the same
sentence      absent    the   sentencing     error,   and    we   accordingly   vacated
Washington’s sentence and remanded to the district court for re-sentencing.
United States v. Washington, 158 F. App’x 528 (5th Cir. 2005). However,
Washington’s attorney did not advise Washington that his sentence had been
vacated and, due to a “clerical oversight,” the district court did not re-sentence
Washington.        Instead, Washington completed his original forty-six-month
sentence and was released from custody to begin the three-year term of
supervised release that had been imposed in the original sentencing
proceeding. Washington completed his supervised release and made payments
of $9,517.35 in partial satisfaction of the restitution order. 1
      In April 2013, Washington finally learned that his sentence had been


      1   Washington has not asked for this money to be returned to him.
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                                 No. 14-10623
vacated. Shortly thereafter, in June 2013, Washington filed a pro se “motion
to amend restitution order,” in which Washington asked the district court to
“quash” the restitution order based on “the fact that [he] was left defectively
unsentenced.” In response to Washington’s motion, the district court entered
an order explaining that “[t]hrough a clerical oversight, the court did not
resentence Defendant Washington as ordered by the appellate court.” The
district court instructed a magistrate judge to appoint defense counsel and
requested briefing on whether the delay in re-sentencing raised issues of
“prejudice and abuse of discretion.”       In January 2014, Washington, now
represented by counsel, filed a motion to dismiss the indictment based on
violation of his Sixth Amendment right to a speedy trial, or, alternatively, his
Fifth Amendment right to due process of law.
      The district court denied Washington’s pro se motion to amend the
restitution order and his counseled motion to dismiss the indictment. The
district court then held a re-sentencing hearing in May 2014—more than eight
years after we vacated Washington’s sentence. At the re-sentencing hearing,
the district court rejected Washington’s alternative argument that the MVRA
was unconstitutional, ruling that the mandate rule precluded reconsideration
of the restitution order and, in the alternative, that the MVRA was
constitutional. The district court then re-imposed the same 46-month sentence
Washington had previously received, with credit for time served, re-imposed
the three-year term of supervised release, which was immediately discharged,
and re-imposed the restitution, with credit for the amounts previously paid.
The practical effect of the district court’s judgment was that Washington
remained responsible, jointly and severally with his co-conspirators, for the
amount remaining on the restitution award. Washington timely appealed.


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                                      No. 14-10623
                                            II.
       The Sixth Amendment affords criminal defendants “the right to a
speedy . . . trial.” U.S. Const. amend. VI. Although many cases implicating
the Sixth Amendment’s Speedy Trial Clause arise in the context of a delay
before trial, we have held that “[t]he constitutionally guaranteed right to a
speedy trial [also] applies to sentencing.” 2 United States v. Abou-Kassem, 

, 167 (5th Cir. 1996); see United States v. Campbell, 

,
1335 (5th Cir. 1976). Accordingly, we have granted relief to a defendant who
“has demonstrated extreme and unreasonable delay in sentencing, and has
demonstrated that he has been prejudiced by the delay.” Juarez-Casares v.
United States, 

, 193 (5th Cir. 1974). We review the district court’s
conclusions of law de novo and its underlying factual findings for clear error.
United States v. Molina-Solorio, 

, 303–04 (5th Cir. 2009).
       We evaluate speedy trial claims under the four-factor framework
established in Barker v. Wingo, 

(1972). 

. The four factors are: (1) length of delay; (2) the reason for the delay; (3)
the defendant’s diligence in asserting his right; and (4) the prejudice to the
defendant. 

. None of these factors is either necessary
or sufficient; rather, “they are related factors and must be considered together
with such other circumstances as may be relevant.” 

Indeed, “[a]


       2“Whether sentencing proceedings are within the ambit of the Speedy Trial Clause is
a question that has not been resolved by the Supreme Court.” United States v. Ray, 

, 191–92 (2d Cir. 2009). In Pollard v. United States, the Supreme Court “assume[d]
arguendo that sentence is part of the trial for purposes of the Sixth Amendment,” but then
denied the petitioner’s claim on the merits. 

, 361 (1957). The circuits are split
on the question. Compare, e.g., Burkett v. Cunningham, 

, 1220 (3d Cir. 1987)
(holding that the Speedy Trial Clause of the Sixth Amendment protects the right to speedy
sentencing), with 

(holding that the Speedy Trial Clause of the Sixth
Amendment does not apply to sentencing proceedings).

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                                  No. 14-10623
defendant need not necessarily show affirmative prejudice or any particular
one of these factors to justify a finding by the court that there has been a denial
of his right to a speedy trial.” 

. Moreover, at least
in the context of a delay before trial, a rebuttable presumption of prejudice
arises if “the first three factors weigh ‘heavily’ in the defendant’s favor.” United
States v. Hernandez, 

, 421 (5th Cir. 2006); see also Doggett v.
United States, 

, 655 (1992) (“[W]e generally have to recognize that
excessive delay presumptively compromises the reliability of a trial in ways
that neither party can prove or, for that matter, identify.”); 

      We have no trouble concluding that Washington’s Sixth Amendment
rights were violated. Washington endured an eight-year delay between the
time we vacated his sentence and the time the district court re-sentenced him.
The Supreme Court has referred to an eight-year delay as “extraordinary,”
Doggett v. United States, 

, 658 (1992), and we have done the same
for a delay of five years, see United States v. Cardona, 

, 497 (5th
Cir. 2002). Washington was not responsible for the “clerical oversight” that
caused the delay, and Washington acted promptly upon learning that his rights
may have been violated. In circumstances identical to these—albeit in the
context of a delay before trial—the Supreme Court presumed prejudice and
granted relief to the defendant. See 

(“When the
Government’s negligence thus causes delay [of eight years], and when the
presumption of prejudice, albeit unspecified, is neither extenuated, as by the
defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled
to relief.” (internal citations and footnotes omitted)).
      We need not, and do not, explore whether the presumption of prejudice
applies exactly the same way in the context of a delay before sentencing as it
does in the context of a delay before trial. Indeed, the presumption may not
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                                       No. 14-10623
arise as readily in the sentencing context, or perhaps might be more easily
rebutted. See United States v. Sanders, 

, 580 (6th Cir. 2006)
(“[W]hen all that remains of a case is the imposition of a sentence, the danger
of losing witnesses or other evidence needed to mount an adequate defense is
minimized, if not eliminated completely.”). 3                 However, we apply the
presumption here, for two reasons. The first reason is the extreme delay in
this case—eight years simply is beyond the pale. The second reason is that, at
the time of re-sentencing, Washington already had served his entire forty-six-
month sentence and his term of supervised release. The delay in this case thus
deprived the district court of the opportunity to conduct a meaningful de novo
re-sentencing proceeding, and it deprived Washington of any incentive to offer
arguments in support of a lesser term of incarceration or supervised release.
Washington’s completion of his sentence thus differentiates this case from
others in which defendants complained of long sentencing delays. See, e.g.,
United States v. Ray, 

(2d Cir. 2009) (defendant did not serve any
of her sentence during fifteen-year delay before re-sentencing); Abou-Kassem,

(defendant had served less than ten years of a sixty-five year
sentence). Where, as here, a defendant serves his entire term of incarceration
and supervised release (i.e., the portions of the sentence over which the district
court has discretion) before the government seeks to re-sentence him, we
cannot credibly retrodict what would have happened in a timely proceeding.
Cf. United States v. Howard, 

, 271 (5th Cir. 1978) (“He suggests




       3  Not all danger of losing witnesses or other evidence is eliminated in the context of
re-sentencing. For example, after a long delay, a defendant may be unable to locate evidence
of, or witnesses to testify about, mitigating circumstances like childhood abuse.

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                                      No. 14-10623
that he was prejudiced by receiving a harsher sentence than he otherwise
would have. It is of course impossible to probe the truth of this suggestion.”). 4
       In light of the extreme delay, Washington’s lack of fault in causing that
delay, and Washington’s completion of most of his sentence, Washington was
presumptively prejudiced. The government has not rebutted the presumption
of prejudice. Cf. 

n.4 (“While the Government ably
counters Doggett’s efforts to demonstrate particularized trial prejudice, it has
not, and probably could not have, affirmatively proved that the delay left his
ability to defend himself unimpaired.”). Accordingly, we hold that Washington
is entitled to relief.
       In the context of unconstitutional delays before trial, the proper remedy
is dismissal of the indictment. 

. Analogously, in the
context of unconstitutional delays before sentencing, “[t]he proper remedy . . .
is to vacate the sentence.” 

. Indeed, at oral
argument, Washington conceded that he is not entitled to dismissal of the
indictment or reversal of his conviction. Under the circumstances of this case,
the only practical relief we can grant Washington is to vacate the unpaid
portion of his restitution obligation. It is so ordered. Cf. United States v. Jones,

(D.C. Cir. 2014) (holding that “twelve- and fifteen-month
reductions that [defendants] received were adequate remedies for any speedy
sentencing violation they may have suffered”).




       4We do not, of course, suggest that the district court was disingenuous in conducting
the re-sentencing hearing. To the contrary, the record reflects that the district court
conducted a thorough and thoughtful hearing. No amount of probity and care, however, can
overcome the fact that Washington had already served his entire term of incarceration and
supervised release, thereby altering irrevocably the circumstances under which the re-
sentencing hearing took place.
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                                        No. 14-10623
                                              III.
       Washington also argues that the restitution award should be vacated
because the MVRA is unconstitutional under Apprendi v. New Jersey, 

(2000), and its progeny. He claims that the MVRA unconstitutionally
permits the district court to make “factual findings that subject the defendant
to a greater range of punishment than that warranted by the jury’s return of a
verdict of guilty.” This argument is moot in light of our determination that the
delay of Washington’s re-sentencing violated his Sixth Amendment rights. In
any event, we have previously held that the MVRA is constitutional. See
United States v. Rosbottom, 

, 420 (5th Cir. 2014); United States v.
Read, 

, 231 (5th Cir. 2012). Washington requests that we take his
case en banc to re-consider our precedent, but doing so is unnecessary to
resolve this appeal. 5
       VACATED IN PART.


       5  Washington’s challenge to the MVRA is also barred by both the doctrine of waiver
and the mandate rule. Because Washington could have brought the MVRA challenge on
initial appeal, but did not, he has waived that claim. See Lindquist v. City of Pasadena, 

, 239 (5th Cir. 2012) (“[A]n issue that could have been but was not raised on appeal
is forfeited and may not be revisited by the district court on remand.” (emphasis omitted)).
Likewise, because Washington could have raised the MVRA issue on initial appeal but did
not, the mandate rule foreclosed the district court on remand, and forecloses us now, from
considering that issue. See United States v. Griffith, 

, 610 (5th Cir. 2008)
(explaining that, pursuant to the mandate rule, all “issues not arising out of this court’s
ruling and not raised in the appeals court, which could have been brought in the original
appeal, are not proper for reconsideration by the district court below”); United States v. Lee,

, 321, 323 (5th Cir. 2004) (explaining that the mandate rule “forecloses
relitigation of issues expressly or impliedly decided by the appellate court,” which includes
issues that “could have been brought in the original appeal” (emphasis omitted)).
        We note that the government does not argue that Washington’s Sixth Amendment
claim is barred by either waiver or the mandate rule, and, indeed, that claim could not be
barred by either—as that claim did not exist at the time of the initial appeal. See 

(“An issue is not waived if there was no reason to raise it in the initial appeal.”);

(explaining that the mandate rule bars only those claims that were
“germane to the original appeal,” i.e., the party raising the claim must have had “sufficient
incentive to raise that issue in the prior proceedings” (alterations omitted)).
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                                       No. 14-10623
HAYNES, Circuit Judge, dissenting:
       I respectfully dissent from the judgment of the court vacating the
remaining portion of Washington’s restitution award based upon a “speedy
trial” violation. 1 Although the circuits are split on the question of whether
there is a Sixth Amendment right to “speedy sentencing,” 2 I agree that our
Circuit’s binding precedent has applied a speedy-trial-type analysis to the
issue of delayed sentencing. 3 I also agree that the remedy for a speedy trial
violation in the sentencing context is the vacatur of the remaining sentence (as
opposed to dismissal of the indictment). I disagree, however, with the majority
opinion’s imposition (unsupported by relevant precedent) of an essentially
irrebuttable presumption of prejudice due solely to the passage of time and
Washington’s service of his original sentence of imprisonment and supervised
release. Our case law does not support this outcome and the facts of this case
negate the conclusion that Washington was prejudiced.                        Accordingly, I
respectfully dissent.




       1 I agree that we are bound by circuit precedent on the issue of the constitutionality
of the MVRA, such that relief on this ground is not warranted.
       2  Washington has also argued that he has a Fifth Amendment due process right to
prompt sentencing, but the analysis of the two arguments has been treated similarly in the
briefing. I conclude that he has not made any arguments that would warrant relief under
the Fifth Amendment for the same reasons I give under the Sixth Amendment analysis.
       3 Were we writing on a clean slate, we would need to take a hard look at the issue of
whether the Sixth Amendment applies to a delay in resentencing, particularly in light of the
majority opinion here. Cases continue to raise this issue and the related due process issue,
and the Supreme Court recently granted certiorari to address the question of whether the
Sixth Amendment applies to the sentencing phase of a criminal prosecution. Montana v.
Betterman, 

, 981 (Mont. 2015) (holding that the Fourteenth Amendment
requires prompt sentencing but denying relief because the defendant was not prejudiced by
the delay), cert. granted, 

(U.S. Dec. 4, 2015) (No. 14-1457). As we are bound
by our precedent in the meantime, however, I do not further address this predicate question
here.
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                                    No. 14-10623
      Our first sentencing delay case after Barker v. Wingo 4 did not apply those
factors, so it is unclear whether later cases applying these factors are faithful
to our precedent. Compare Juarez-Casares v. United States, 

,
191–93 (5th Cir. 1974) (not citing or discussing Barker), with United States v.
Howard, 

, 271 (5th Cir. 1978) (applying the Barker factors).
However, even in a case applying the Barker factors to sentencing delays, we
recognized that those factors arose in the very different context of pre-trial
delays and that Barker’s “analysis is directed at different concerns than are
present in this case.” 

–71 (denying relief because the
possibility of prejudice was “only speculative”).
      Even assuming that the Barker factors are appropriately considered in
this context, it is inappropriate to import wholesale to the sentencing context
the presumption of prejudice line of cases arising from pre-trial delay
situations. When there are unreasonable pre-trial delays, a presumption of
prejudice is necessary because such delays impact a highly dynamic process,
often involving juries, relevant witnesses, and evidence. These delays can also
result in “oppressive pretrial incarceration, impairment of defense and
anxiety.” 

However, a “[s]entencing delay typically risks only the
possible prejudice of anxiety,” 

noticeably absent here
because Washington was unaware of the delay in his resentencing for the
duration of his incarceration and was promptly resentenced once the error
came to light. A presumption of prejudice due to an unreasonable delay in
resentencing is further unwarranted where, as in this case, the same judge
who conducted the original sentencing also conducted the resentencing and




      4   

(1972).

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                                 No. 14-10623
assessed the same set of facts. In other words, the risk of prejudice as a result
of lost witnesses or other evidence is nonexistent here.
      In addition to being unnecessary, the presumption of prejudice asserted
here is contrary to our precedents.         Our first case addressing “speedy
sentencing” (decided a few months before Barker) was United States v. James,

(5th Cir. 1972).     There, we found that the three-year delay
between conviction and final sentencing was “unreasonable” under then-
existing law (18 U.S.C. § 4208) requiring prompt parole determinations. 

Despite the “unreasonable delay,” we granted no relief to the defendant
because his claims of prejudice were “purely hypothetical.” 

Thus, unreasonable delay alone was insufficient to create any presumption of
prejudice.
      Thereafter, in United States v. Campbell, 

, 1335 (5th Cir.
1976), we applied the Barker factors, but we did not presume prejudice despite
a “clearly unreasonable” six-year delay between conviction and sentencing. As
in the present case, we further concluded that the cause of the delay was the
government’s “benign neglect” and thus was not attributable to any fault of the
defendant. 

determined that the defendant’s “failure . . . to
assert his right” during the delay did not “carry much weight” in the analysis.

weighing in favor of the defendant, we did not proceed to
presume prejudice. Instead, we remanded to the trial court to decide whether
the “allegations of prejudice were supported by any evidence.” 

      The parties have not cited, and I have not found, a single Fifth Circuit
case since the 1970s vacating a sentence based upon a delay in resentencing.
The sheer lack of supporting precedent is reason enough to question the
majority opinion’s determination. Indeed, until now, the only Fifth Circuit
case cited or located in which vacatur occurred is Juarez-Casares, which


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                                 No. 14-10623
involved an original sentencing (not a 

. We
announced the standard there as follows: “If there has been an unreasonable
delay, and if that delay results in prejudice to the defendant, then a violation
has occurred. Naturally, the burden is on the defendant to show prejudice.” 

(emphasis added). We concluded that the burden was satisfied because
the district court expressly stated during final sentencing that it was
increasing the punishment due to other unrelated offenses the defendant
committed during the delay. 

–93. We did not presume prejudice, we
found actual prejudice. By contrast, the exact opposite happened here: the
district court expressly stated it would not take into consideration
Washington’s separate criminal conviction that occurred during the delay.
      The facts of this case thus provide no support for the majority opinion.
Even under the Barker factors, the only factor “heavily favoring” Washington’s
argument is the very long delay in resentencing. The district court found that
the delay was caused by a clerical oversight (i.e., it was not intentional); this
finding is unchallenged, and, therefore, entitled to deference.      See United
States v. Duhon, 

, 396 (5th Cir. 2008). While a clerical oversight
is evidence of neglect on the part of the government, it is not a factor that
“weigh[s] heavily” in Washington’s favor. United States v. Hernandez, 

, 421 (5th Cir. 2006). While Washington did act promptly once he learned
of his vacated sentence, his diligence is rather questionable, in my view, given
that by his own admission, he never inquired as to the result of his own appeal.
Thus, this factor weighs only slightly (not heavily) in Washington’s favor.
      Washington’s case is similar to Campbell, discussed above.              See

.       Notably, we did not presume prejudice in
Campbell, despite the long delay, negligence of the government and absence of
fault by the defendant, and we should not do so here. 

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                                  No. 14-10623
presuming prejudice in a resentencing delay context would be unprecedented
in the Fifth Circuit.
      If there is no presumption of prejudice, Washington has utterly failed to
show that he was actually prejudiced by the delay in resentencing.
Washington originally argued that he would be prejudiced by the intervening
event of a 2011 conviction, but the district court expressly stated that it would
not consider that intervening event as part of the resentencing. Implicit in the
majority opinion is the idea that the district court could not fairly conduct a
legitimate resentencing because it would be influenced by the fact that
Washington had already served the previous sentence. I respectfully disagree
with this implication.     The district court, once advised of the situation,
appointed counsel for Washington and considered Washington’s briefing and
evidence, after which it ruled that the delay did not prejudice Washington.
Thereafter, the court conducted a full resentencing and carefully and
thoroughly addressed the sentencing factors. Washington’s guidelines range
was exactly the same as before (46–57 months) and the district court concluded
that a within-guidelines sentence was appropriate under the 18 U.S.C.
§ 3553(a) factors. While the guidelines are now advisory, they remain an
important guidepost such that a guidelines sentence is entitled to a
presumption of reasonableness on appeal. Rita v. United States, 

,
341 (2007); United States v. Wilcox, 

, 757 (5th Cir. 2011). The
district court’s findings on resentencing are unassailed by either Washington
or the majority opinion and the within-guidelines sentence is in keeping with
a countless number of sentences issued every day.
      Where is the prejudice in all this?        Although the majority opinion
correctly states that factual findings are subject to clear error review, it gives
no deference to the district court’s findings on either the resentencing process


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                                       No. 14-10623
or the prejudice issue. Washington argues that the delay prevented him from
making arguments for a below-guidelines sentence or a lessened supervised
release term, but conspicuously fails to articulate any such hypothetical
argument. Why then does the majority opinion fail to credit the district court’s
finding that 46 months was a proper sentence of imprisonment? Why does the
majority opinion assume the district court in a timely resentencing would have
given Washington a lower sentence, despite not one shred of evidence to
support that assumption? We routinely believe the district court when it
makes findings bearing upon the effect of its ruling in the sentencing context.
For example, we regularly credit a district court’s finding that it would have
imposed the same sentence even if it miscalculated the sentencing guidelines
range. See 

(5th Cir. 2008). 5 We also credit the district
judge’s determination of how a factor would have influenced that judge. United
States v. Brito, 601 F. App’x 267, 273 (5th Cir. 2015) (determining that a
district court’s finding of no prejudice due to allegedly ineffective counsel
during sentencing was not clearly erroneous). Why not believe the district
court here?
       In sum, no binding precedent supports the presumption of prejudice
applied here, and Washington has entirely failed to show actual prejudice.
Even if prejudice were presumed, I further disagree with the majority opinion
that the Government has failed to rebut that presumption. The record shows
that Washington got (and served) the same sentence he would have received
had the resentencing occurred eight years ago—there is simply no prejudice,
presumed or otherwise. As such, vacating the remaining restitution award, as



       5 See also United States v. Ramos, 

, 253–54 (5th Cir. 2014); United States
v. Richardson, 

, 512 (5th. Cir. 2012); United States v. Bonilla, 

, 656
(5th Cir. 2008).

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                                       No. 14-10623
to which there was no Booker 6 error and no error now, merely punishes the
financial institution (or its insurer) that was the innocent victim of
Washington’s crimes. I would affirm the district court’s judgment in full.




      6   United States v. Booker, 

(2005).

                                             15