In U.S. v. Davis, 2005 WL 1033422 (May 4, 2005), the Court (Anderson, Carnes, Marcus) vacated a sentence and remanded for resentencing consistent with Booker.
Pre-Booker, the defendant objected in the district court, and again in his initial brief on appeal, that the district court’s reliance on drug quantity as a basis for his sentence violated his Sixth Amendment rights. The Court agreed finding that the error was not harmless. The Court rejected the government’s argument that the error was harmless because the sentencing court already departed downward, on the basis of the defendant’s assistance to authorities. The Court noted that under the Guideline departure authority, the district court had not enjoyed "unfettered" discretion, but only discretion within the substantial assistance guideline. The Court said it simply did not know how the district court would have imposed sentence had it known the Guidelines were "advisory," and therefore the government, on harmless error review, could not meet its burden of showing the district court’s error was "harmless."