Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals For the First Circuit

No. 00-2397

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD A. X. STOKES,

Defendant, Appellant.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before

Torruella, Dyk,* and Howard, Circuit Judges.

Judith H. Mizner, for appellant. Cynthia A. Young, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, on brief, for appellee.

September 8, 2005

* Of the Federal Circuit, sitting by designation. Per Curiam. On November 5, 2004, we affirmed the

conviction of defendant-appellant Ronald A. X. Stokes for being a

felon in possession of a firearm,

(g), as well as

his sentence of 30-years imprisonment. See United States v.

Stokes,

(1st Cir. 2004). Stokes subsequently

petitioned for certiorari, during which time the Supreme Court

decided United States v. Booker,

(2005). In a

routine order, the Supreme Court granted Stokes' petition for

certiorari pro forma, vacated our judgment, and remanded for

further consideration in light of Booker. See Stokes v. United

States,

(2005). After review of the parties'

supplemental briefs, we again uphold the length of Stokes' sentence

and reinstate the judgment, but remand as to whether the district

court would run the federal sentence concurrently with any parole

sentence that the state might eventually impose from Stokes' prior

conviction.

The facts surrounding this case have been thoroughly

explained elsewhere. See Stokes,

; United

States v. Stokes,

(1st Cir. 1997); United

States v. Stokes,

(D. Mass. 1996);

Commonwealth v. Stokes,

(Mass. App. Ct.

1995), rev. denied,

(Mass. 1995). In a nutshell,

Stokes was convicted on one count of being a felon in possession of

a firearm -- an AK-47 -- for a shooting which killed one person and

-2- wounded two other individuals.1 The sentencing court found Stokes

to be an Armed Career Criminal pursuant to the Armed Career

Criminal Act ("ACCA"),

(e), with a criminal history

category of VI. The court then determined Stokes' total offense

level to be 34 -- placing his Guidelines sentencing range from 262

to 327 months' imprisonment -- due to the "overwhelming" evidence

that he had used an AK-47 during a crime of violence. United

States v. Stokes, No. CRIM 95-10379-RGS,

, at *4 (D.

Mass. Feb. 28, 2000). Upon the government's motion, the court also

departed upward one level, pursuant to U.S.S.G. § 5K2.6, because of

"the extraordinarily dangerous nature of this particular weapon and

ammunition involved in this offense." The court then rejected

Stokes' argument for a downward departure. With a resulting

Guidelines sentencing range of 292 to 365 months, the court

sentenced Stokes to 360 months, stating that "Mr. Stokes' history

of violent crimes and recidivist propensity justifies a sentence at

the upper end of the applicable sentencing range."

The court ordered Stokes' federal sentence to run

concurrently with the state sentence stemming from the same

incident, but held that under U.S.S.G. § 5G1.3, it did not have the

authority to run the federal sentence concurrently with any parole

1 In connection with this same incident, Stokes was also previously convicted and sentenced in state court on one count of illegally carrying a firearm and two counts of assault and battery with a dangerous weapon; he was acquitted, however, of the first- degree murder charge. See Stokes,

.

-3- sentence that the state might eventually impose for a prior

conviction. In relevant part, the court stated: "I would be

willing to hear further by way of subsequent filings on this issue,

but . . . [t]he problem is that the Guidelines have an explicit

prohibition . . . . [I]f that's wrong, then I might consider it in

the sentencing order."

Stokes now argues that the district court erred in

sentencing him under the mandatory guidelines, and that under an

advisory system, the district court might (1) impose a more

favorable sentence, and (2) reconsider its denial of Stokes'

request that his federal sentence run concurrently with any future

state parole sentence.

While it is clear that sentencing under the mandatory

guidelines was in error, Stokes has not preserved this claim of

error below, and thus, our review is for plain error. See United

States v. Antonakopoulos,

(1st Cir. 2005). Under

this standard, Stokes must demonstrate a "reasonable probability"

that the sentencing court would have imposed a lower sentence under

an advisory guidelines regime. Id.; see also United States v.

Heldeman,

(1st Cir. 2005) (requiring a

"reasonable indication that the district judge might well have

reached a different result under advisory guidelines"). When,

however, "under a mandatory guidelines regime, a sentencing court

has elected to sentence the defendant substantially above the

-4- bottom of the range, that is a telling indication that the court,

if acting under an advisory guidelines regime, would in all

likelihood have imposed the same sentence." United States v.

González-Mercado,

(1st Cir. 2005); see also

United States v. Brennick,

(1st Cir. 2005);

United States v. Carpenter,

(1st Cir. 2005).

Here, the court sentenced Stokes "substantially above the

bottom of the range" -- 360 months from a sentencing range of 292

to 365 months -- based on "Stokes' history of violent crimes and

recidivist propensity." Moreover, in so doing, the court exercised

its discretion to depart upward, and "[b]y moving up, the judge

evinces not only a belief that discretion exists but also a

disposition to exercise it adversely to the accused." United

States v. Lee,

(7th Cir. 2005) (holding that an

upward departure may be one indication that errors from treating

the guidelines as mandatory do not affect defendant's substantial

rights). Under these circumstances, we find that Stokes has failed

to show a reasonable probability that the district court would have

imposed a lower sentence under an advisory guidelines system.

We find, however, that the district court might have

ruled differently on the concurrency issue. As this court has

stated, proof of reasonable probability that the district judge

might have reached a different result under advisory guidelines is

not "overly demanding." Heldeman,

. In the instant

-5- case, the fact that the sentencing judge indicated that he was

willing to consider the concurrency issue but for the mandatory

guidelines is sufficient for a Booker remand. See United States v.

Burhoe,

(1st Cir. 2005) (finding reasonable

probability when the district judge stated "I don't believe the

language of the guidelines permit me to tailor this").

Thus, we again affirm Stokes' conviction and sentence,

and order our earlier judgment reinstated, but remand to the

district court as to whether, under an advisory guidelines system,

it would order Stokes' federal sentence to run concurrently with

any future state parole sentence.

It is so ordered.

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