United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`Decided May 31, 2016
`
`
`
`Argued February 16, 2016
`
`
`No. 14–3037
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`HIACHOR KPODI,
`APPELLANT
`
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:13-cr-00214-1)
`
`
`
`Sandra G. Roland, Assistant Federal Public Defender,
`argued the cause for the appellant. A.J. Kramer, Federal
`Public Defender, was with her on brief. Tony Axam Jr.,
`Assistant Federal Public Defender, entered an appearance.
`
`
`Daniel J. Lenerz, Assistant United States Attorney, argued
`the cause for the appellee. Vincent H. Cohen Jr., Acting
`United States Attorney at the time the brief was filed, Elizabeth
`Trosman and Elizabeth H. Danello, Assistant United States
`Attorneys, were with him on brief.
`
`
`Before: HENDERSON, SRINIVASAN and MILLETT, Circuit
`Judges.
`
`
`
`
`

`
`2
`Opinion for the Court filed by Circuit Judge HENDERSON.
`
`KAREN LECRAFT HENDERSON, Circuit Judge: After his
`May 9, 2013 arrest, Hiachor Kpodi was convicted of
`possessing with intent to distribute twenty-eight grams or more
`of cocaine base and possession of a firearm by a felon. During
`sentencing, the district court considered, as an aggravating
`factor, evidence that Kpodi was involved in an unrelated
`gunfight even though it had prohibited the Government from
`introducing the same evidence during Kpodi’s trial. The court
`sentenced Kpodi to 151 months’ imprisonment on the cocaine
`possession count and 120 months’ imprisonment on the gun
`possession count, to run concurrently. For the reasons that
`follow, we vacate and remand for resentencing in light of the
`district court’s erroneous reliance on the evidence of the
`gunfight.
`
`I. BACKGROUND
`
`A.
`On May 9, 2013,1 officers of the District of Columbia
`Metropolitan Police Department and the Maryland State Police
`searched a residence that Kpodi shared with a roommate.
`During the search, police found, inter alia, cocaine base on
`Kpodi, cocaine base and Percocet in his bedroom and a loaded
`.45 caliber Glock semi-automatic handgun in a kitchen cabinet.
`On December 3, a grand jury indicted Kpodi on one count of
`possessing with intent to distribute twenty-eight grams or more
`of cocaine base, in violation of 21 U.S.C. § 841(a)(1),
`(b)(1)(B)(iii) (Count I); one count of possessing with intent to
`distribute a detectable amount of oxycodone, in violation of 21
`U.S.C. § 841(a)(1), (b)(1)(C) (Count II); one count of
`
`1 All events occurred in 2013 unless otherwise indicated.
`
`
`
`

`
`3
`possession of a firearm by a felon,2 in violation of 18 U.S.C.
`§ 922(g)(1) (Count III); and one count of using and carrying a
`firearm in furtherance of a drug-trafficking offense, in
`violation of 18 U.S.C. § 924(c)(1) (Count IV).
`
`Before trial, in its December 6 Motion to Admit Other
`Crimes Evidence
`(Motion),
`the Government proffered
`evidence of four related events: (1) a July 24, 1997 search of
`Kpodi’s then-apartment that produced multiple handguns and
`twenty ounces of cocaine; (2) an April 4 report of gun shots
`being fired near Kpodi’s house; (3) an April 27 traffic stop and
`search of Kpodi’s vehicle that uncovered a loaded .45 caliber
`Glock handgun; and (4) an October 30 search of a Silver
`Spring, Maryland residence where Kpodi often transacted
`business that led to the seizure of ammunition and 280 grams
`of crack cocaine. The April 4 shooting forms the factual
`gravamen of Kpodi’s appeal.
`
`On the evening of April 4, Kpodi’s neighbors reported gun
`shots near Kpodi’s house. The next day, two residents
`reported that bullets had struck their vehicles. During the
`ensuing investigation, crime-scene investigators recovered
`twenty-nine shell casings near Kpodi’s residence, fourteen of
`which were from a .45 caliber handgun—the same caliber as
`the handgun subsequently seized in Kpodi’s residence on May
`9.3 On April 24, the police interviewed two witnesses who
`saw Kpodi fleeing to his residence and ducking behind
`
`
`2 The parties stipulated that Kpodi had previously been
`convicted of a felony. 1/9/14 Trial Tr. 220.
`3 The shell casings collected during the April 4 shooting, along
`with the evidence from the April 27 traffic stop, initiated the
`investigation that led to the search warrant executed at Kpodi’s
`residence on May 9.
`
`
`
`

`
`4
`vehicles while the shootings occurred. In its Motion, the
`Government summarized the witnesses’ testimony as follows:
`
`[O]ne witness reported seeing men running up
`and down the 2200 block of Perry Street while
`the shots were being fired. This witness
`indicated that the witness saw . . . [Kpodi]
`running. A second witness indicated that after
`hearing
`the
`gun
`shots
`the witness
`observed . . . [Kpodi] running from between
`2220 & 2222’s pathway. This witness also
`stated [Kpodi] . . . ducked close to the vehicles
`parked on the odd side of the street as if he was
`retrieving items, then ran inside his home.
`
`Appellant’s App’x (A.A.) 19. The Government argued that
`the .45 caliber shell casings collected near Kpodi’s residence
`further established his constructive possession of the .45
`caliber handgun recovered during the May 9 search, especially
`in view of the witnesses’ reports of seeing Kpodi duck behind
`the vehicles purportedly
`to retrieve
`the shell casings.
`According to the Government’s Motion, the eyewitness
`testimony and recovered shell casings showed that Kpodi
`possessed a firearm knowingly and intentionally around the
`time of his arrest and, accordingly, were admissible under
`Federal Rule of Evidence 404(b)(2) as evidence that “bears on
`the identity and the intent of the possessor of the firearm as
`well as the absence of any mistake or accident regarding its
`whereabouts.” A.A. 20. Kpodi disputed the relevance of this
`evidence, arguing that neither witness identified any person
`(including Kpodi) who fired shots or was holding a gun at the
`time the shots were fired but merely observed him on the
`neighborhood streets fleeing from the shootings.
`
`
`
`

`
`5
`During a December 18 hearing, the district court
`expressed concern regarding the alleged extent of Kpodi’s
`involvement in the events of April 4, stating that it was “quite
`vague” and that the evidence merely showed that, “[y]ou have
`clarity that Mr. Kpodi . . . [was] on the street”; “that Mr. Kpodi
`ran into his house” and that “Mr. Kpodi was ducking behind
`cars.” 12/18/2013 Hr’g Tr. 41. The court further explained
`that the evidence did not establish whether Kpodi had any
`active role in the shootings or was merely fleeing from the gun
`shots.
`
`The court eventually denied the Government’s 404(b)(2)
`Motion with respect to the April 4 gunfight,4 finding that the
`“logical leaps” required to establish that Kpodi fired a
`later-seized Glock on April 4 were “simply too far,” especially
`“since eyewitnesses sufficiently observant to identify the
`defendant running on the street failed to see him holding a
`gun.” A.A. 55. The court explained that:
`
`other inferences are just as, if not more, clear:
`that the defendant’s presence in the area was
`due to the fact that he lived there; that the
`defendant was running for shelter in his own
`home to avoid the gunfire; that the defendant
`was ducking behind cars for cover; and
`finally,—and most significantly—that
`the
`defendant had no gun . . . .
`
`Id. (internal quotation marks omitted). Thus, because of the
`“limited and vague eyewitness testimony” that failed to
`identify Kpodi as a shooter that night, the district court
`reasoned that the “probative value of the April 4, 2013
`
`4 The court admitted the evidence of the April 27 traffic stop
`and October 30 search but excluded the evidence of the July 1997
`search.
`
`
`
`

`
`6
`evidence [was] questionable” and its potential prejudicial
`effect was “severe” because “[t]he prejudicial effect of having
`the jury hear the [G]overnment’s speculation that the defendant
`engaged in a gunfight on neighborhood streets in this city, with
`all of the attendant risk to the safety of innocent bystanders and
`residents, including children, is significant.” Id. at 57–58
`(internal quotation marks omitted). Trial began on January 7
`and ended on January 10, 2014, with guilty verdicts on Counts
`I and III and acquittals on Counts II and IV.
`
`B.
`
`The district court sentenced Kpodi on June 3, 2014.
`Kpodi’s Presentence Report (PSR) included the April 4
`evidence even though the trial court had excluded it before
`trial. Kpodi objected to the district court’s consideration of
`that evidence for sentencing, arguing that it was no more
`relevant for sentencing than it was for Rule 404(b)(2).
`
`The court disagreed, reasoning that: (1) the PSR
`“describes the shooting incident on the residential streets
`around the defendant’s residence on April 4”; (2) “two
`eyewitnesses identify the defendant as being involved”; and
`(3) “police found bullet casings that matched the same caliber
`gun found in the defendant’s residence during the execution of
`the search warrant a couple of weeks later.” 6/3/14 Hr’g Tr.
`11–12.
` After acknowledging
`that
`it had denied
`the
`Government’s December 6 Motion, the district court saw “no
`reason for exclusion from the PSR of this evidence for
`description of the circumstances that led to the investigation
`and ultimately to the execution of the search warrant at Mr.
`Kpodi’s home.” Id. at 12.
`
`Later in the hearing, during the court’s discussion of the 18
`U.S.C. § 3553 factors, the court addressed the other-crimes
`evidence, including the April 4 gunfight:
`
`
`
`

`
`7
`The events leading to the execution of the
`search warrant at the defendant’s house on May
`9th, 2013, while not admitted at trial as being
`too prejudicial, are chilling. We read all too
`frequently in the newspapers when we wake up
`in the morning about innocent bystanders,
`including children, inside their homes being
`accidentally shot by gunfire occurring on the
`streets, and in this case two eyewitnesses
`identified Mr. Kpodi as participating in such a
`gunfight outside his home in D.C. a short time
`before the search warrant was obtained.
`
`While we don’t know the precise reason for the
`gunfight or the defendant’s precise role in the
`gunfight, what is clear from the defendant’s
`involvement and participation in the gunfight
`combined with the loaded guns found in his
`possession during the [April 27] car-stop in the
`same month as the street gunfight and in his
`D.C. home where he stored his drugs is that he
`was clearly prepared to use a gun as part of his
`illegal drug business.
`
`To me this is a very important circumstance that
`the association of
`the defendant’s drug
`conviction with guns that is a very important
`consideration in the Court’s determination of
`which sentence recommendation is appropriate
`in this case.
`
`Id. at 47–48 (emphases added).
`
`The PSR calculated Kpodi’s base offense level as 32, with
`an additional two-level enhancement for possession of a
`dangerous weapon, and calculated his criminal history as III.
`
`
`
`

`
`8
`The court reduced the total offense level by two due to
`mitigating circumstances, resulting in a Guidelines range of
`151 to 180 months on Count I and 120 months, the statutory
`maximum, on Count III. The court sentenced Kpodi to
`concurrent terms of 151 months’ imprisonment on Count I and
`120 months’ imprisonment on Count III. Kpodi timely
`appealed his sentence. Our jurisdiction arises under 28 U.S.C.
`§ 1291.
`
`II. ANALYSIS
`
`Kpodi argues that the district court erred by considering
`the April 4 evidence when it sentenced him. The Government
`responds that the court did not abuse its discretion in relying on
`that evidence during sentencing, notwithstanding it had
`excluded the same evidence before trial as unduly prejudicial.
`Alternatively, the Government argues that any error was
`harmless.
`
`A.
`
`We review Kpodi’s challenge to his sentence for abuse of
`discretion, applying the two-step approach from Gall v. United
`States, 552 U.S. 38 (2007). First, we “ensure that the district
`court committed no significant procedural error, such as failing
`to calculate (or improperly calculating) the Guidelines range,
`treating the Guidelines as mandatory, failing to consider the
`§ 3553(a) factors, selecting a sentence based on clearly
`erroneous facts, or failing to adequately explain the chosen
`sentence . . . .” Id. at 51. Second, “[a]ssuming that the
`district court’s sentencing decision is procedurally sound,” we
`“then consider the substantive reasonableness of the sentence
`imposed . . . tak[ing]
`into account
`the
`totality of
`the
`circumstances.” Id.
`
`
`
`

`
`9
`Because a sentence must “not be based on improper or
`inaccurate information,” United States v. Lemon, 723 F.2d 922,
`933 (D.C. Cir. 1983) (internal quotation marks omitted), we
`must determine whether the court relied on “clearly erroneous
`facts” in reaching the ultimate sentence, Gall, 552 U.S. at 51.
`It is not per se error, however, for the sentencing judge to
`consider facts beyond those found by the jury. See United
`States v. Watts, 519 U.S. 148, 157 (1997) (“[A] jury’s verdict
`of acquittal does not prevent the sentencing court from
`considering conduct underlying the acquitted charge, so long
`as that conduct has been proved by a preponderance of the
`evidence.”); accord United States v. Settles, 530 F.3d 920,
`923–24 (D.C. Cir. 2008). “[The clearly erroneous] standard
`applies to the inferences drawn from findings of fact as well as
`to the findings themselves.” Overby v. Nat’l Ass’n of Letter
`Carriers, 595 F.3d 1290, 1294 (D.C. Cir. 2010) (quoting
`Halberstam v. Welch, 705 F.2d 472, 486 (D.C. Cir. 1983)).
`
`According to Kpodi, the district court abused its discretion
`when it changed tack between trial and sentencing, reasoning
`pre-trial that the witness testimony and shell casings were not
`sufficiently probative that Kpodi had fired a weapon or
`participated in the April 4 shootings but concluding at
`sentencing that Kpodi was prepared to use guns in furtherance
`of his illegal drug business in light of the April 4 evidence.
`We agree. We have not previously determined whether a
`district court may consider Rule 404(b)(2) evidence during
`sentencing if it excluded the same evidence as unduly
`prejudicial before trial and we need not decide whether a
`categorical bar is warranted. Instead, we believe the district
`court abused its discretion by relying on a clearly erroneous
`inference in sentencing Kpodi.
`
`the Government
`the pre-trial proceedings,
`During
`proffered two pieces of evidence to demonstrate that Kpodi
`
`
`
`

`
`10
`participated in the April 4 shootings: (1) the .45 caliber shell
`casings collected near Kpodi’s house that matched the caliber
`of the gun police later found when they searched his residence;
`and (2) the testimony of the two witnesses interviewed by the
`police. But as the district court explained before trial, this
`evidence, standing alone, did not support the Government’s
`inference that Kpodi fired a gun during the shootings or held a
`weapon while fleeing. According to the court, the eyewitness
`testimony was vague—it established only that Kpodi was
`nearby when the shooting occurred, ran from the gunshots and
`ducked behind a car. The .45 caliber shell casings also did not
`advance the Government’s argument—they were not linked
`specifically to Kpodi’s gun and therefore had little probative
`value with respect to the court’s eventual conclusion that
`Kpodi was prepared to use guns in the furtherance of his drug
`trade. At best, one witness stated that Kpodi ducked behind
`vehicles “as if he was retrieving items,” A.A. 19, but such an
`ambiguous statement inadequately supports an inference that
`Kpodi in fact picked up shell casings similar to those later
`found at the scene, much less that he used or was carrying a
`weapon at the time of the shootings. The district court
`therefore correctly concluded that “other inferences are just as,
`if not more, ‘clear,’ ” A.A. 55; that is, it was just as likely that
`Kpodi fled from gunfire and took shelter behind a car.
`
`The district court’s pre-trial analysis was eminently
`reasonable. The court, however, switched course during
`sentencing. The court stated that the April 4 incident “shows
`that . . . there’s no surprise that he also used [guns],” and “as
`[disturbing] as it is, that he would engage in a shootout on the
`residential streets of the city.” 6/3/14 Hr’g Tr. 12. During its
`section 3553 analysis, the court referred to this evidence as
`“chilling,” tying it to “children, inside their homes being
`accidentally shot by gunfire occurring on the streets.” Id. at
`47–48. Critically, the court claimed that the eyewitnesses
`
`
`
`

`
`11
`“identified Mr. Kpodi as participating in such a gunfight,” id.
`at 48 (emphasis added), even though the witnesses merely
`observed Kpodi fleeing, ducking and appearing to pick up
`something from the ground. The court recognized the
`uncertainty of Kpodi’s role in the April 4 shootings, stating that
`“we don’t know the precise reason for the gunfight or the
`defendant’s precise role in the gunfight” but it nevertheless
`believed that this evidence, in combination with the admitted
`evidence of the April 27 traffic stop and October 30 search,
`showed that Kpodi “was clearly prepared to use a gun as part of
`his illegal drug business.” Id. at 48. The court noted that the
`April 4 evidence was “a very important circumstance” and “a
`very important consideration in the Court’s determination of
` Id.
`which sentence recommendation
`is appropriate.”
`Nevertheless, in view of the vagueness of the evidence of
`Kpodi’s actions on April 4, the district court’s inference that
`Kpodi either fired a weapon, was holding a gun while fleeing
`or even participated in the April 4 shooting was clearly
`erroneous. The district court therefore abused its discretion
`by relying on
`that clearly erroneous
`inference during
`sentencing.
`
`The Government, however, argues that the district court
`did not act inconsistently in its pre-trial analysis and in its
`subsequent sentencing. According to the Government, the
`district court excluded the April 4 evidence before trial because
`the Government failed to adequately support its argument that
`Kpodi used a gun during the shooting. The Government
`claims that the court’s earlier analysis, however, differs from
`its conclusion
`reached during sentencing
`that Kpodi
`participated in the April 4 shooting, which, in its view, is well
`supported by the witness testimony and the recovered shell
`casings. See Appellee’s Br. 21 (“Nowhere in its order
`addressing the [G]overnment’s motion did the district court
`find that appellant had not been involved with or participated in
`
`
`
`

`
`12
`the April 4, 2013, shooting incident (by, for example, picking
`up spent shell casings off the ground, or aiding other
`individuals who were shooting and/or being shot at).”
`(emphasis in original)).5
`
`Again, the Government’s argument runs contrary to the
`district court’s statements during sentencing. The court did
`not conclude that Kpodi “would engage in a shootout” based
`solely on the fact he might have bent over to pick up shell
`casings; the court plainly viewed him as a shooter based on the
`statements it made during sentencing. 6/3/14 Hr’g Tr. 12.
`For example, the court discussed the frequency of shootings
`that could harm “innocent bystanders, including children.”
`Id. at 47. Although it did not “know . . . the defendant’s
`precise role in the gunfight,” the court’s discussion of the April
`4 event and of Kpodi’s role therein makes clear that Kpodi’s
`“participation” did not refer to his cleaning up evidence. Id. at
`48. More to the point, the court stated that Kpodi’s
`“involvement and participation in the gunfight” supported its
`conclusion that he “was clearly prepared to use a gun as part of
`his illegal drug business.” Id. (emphasis added). That
`inference is supported by neither the witness testimony nor by
`the fact that shell casings were recovered near Kpodi’s
`residence. The April 4 evidence does not support the
`conclusion that Kpodi used a gun in his illegal drug business; at
`most it shows that Kpodi lived near the area where the shooting
`occurred and might have retrieved evidence. Although the
`evidence from the April 27 traffic stop and October 30 search
`may ultimately support the district court’s conclusion that
`Kpodi had a propensity to use firearms in connection with his
`
`5 See also Oral Arg. Recording at 18:20–19:20 (Government
`iterating that, even if the evidence did not show that Kpodi fired a
`weapon on April 4, it demonstrated Kpodi’s participation in the
`shootings by, for example, his picking up shell casings at the scene).
`
`
`
`

`
`13
`drug dealings, the inference that the April 4 evidence
`demonstrated that propensity was clearly erroneous.6
`
`B.
`
`The Government further argues that any error by the
`district court in its consideration of the April 4 evidence was
`harmless because the court’s reliance on that evidence did not
`affect Kpodi’s sentence. We disagree.
`
`Under Federal Rule of Criminal Procedure 52(a), “[a]ny
`error, defect, irregularity, or variance that does not affect
`substantial rights must be disregarded.” FED. R. CRIM. P.
`52(a). If the error affects no constitutional rights, it is
`harmless unless it had a “substantial and injurious effect or
`influence.”7 United States v. Powell, 334 F.3d 42, 45 (D.C.
`
`6 Even were we to adopt the Government’s argument that the
`district court was consistent in its pre-trial conclusion and its
`consideration of the April 4 evidence during sentencing, the
`evidence would nonetheless fail to support the inference that Kpodi
`was prepared to use a gun in furtherance of his drug trade. The only
`evidence potentially showing that Kpodi picked up shell casings that
`evening was a single witness statement that Kpodi, while fleeing,
`“ducked close to the vehicles parked on the odd side of the street as if
`he was retrieving items.” A.A. 19. No witness identified him
`picking up any item, including shell casings. And the fact that the
`shell casings match the type of gun later seized from Kpodi’s
`residence is largely irrelevant—the Government did not connect
`those recovered shell casings to the gun later seized from Kpodi’s
`residence.
`7 In contrast, “[a] constitutional error is harmless” only “if it
`appears ‘beyond a reasonable doubt that the error complained of did
`not contribute to the [sentence] obtained.’ ” United States v.
`Simpson, 430 F.3d 1177, 1184 (D.C. Cir. 2005) (second alteration in
`original) (emphasis added) (quoting Chapman v. California, 386
`U.S. 18, 24 (1967)). Because the Government fails under both the
`
`
`
`

`
`14
`Cir. 2003) (quoting Kotteakos v. United States, 328 U.S. 750,
`776 (1946)). “[I]n most cases, [this] means that the error must
`have been prejudicial: [i]t must have affected the outcome of
`the district court proceedings.” United States v. Olano, 507
`U.S. 725, 734 (1993); see also United States v. Williams, 503
`U.S. 193, 203 (1992) (“[O]nce the court of appeals has decided
`that the district court misapplied the Guidelines, a remand is
`appropriate unless the reviewing court concludes, on the record
`as a whole, that the error was harmless, i.e., that the error did
`not affect the district court’s selection of the sentence
`imposed.”). However, “[i]f we ha[ve] any doubt as to whether
`the
`erroneous
`understanding
`the District Court
`expressed . . . affected the District Court’s sentencing decision,
`we [will] not hold the error to be harmless.” United States v.
`Ayers, 795 F.3d 168, 176 (D.C. Cir. 2015). “The government
`bears the burden of proving the absence of such an effect.”
`United States v. Linares, 367 F.3d 941, 952 (D.C. Cir. 2004).
`
`We have not previously addressed harmless error in the
`context of a sentencing court’s reliance on a clearly erroneous
`inference. 8 The Government has nevertheless failed to
`
`more stringent constitutional error and
`the
`less stringent
`non-constitutional error analysis, we need not determine the
`appropriate standard here.
`8 The United States Court of Appeals for the Fifth Circuit
`discussed an analogous situation in United States v. Wright, 24 F.3d
`732 (5th Cir. 1994). The district court in Wright granted an upward
`departure on
`the basis of a factual finding—that Wright
`constructively possessed a gun—which the court of appeals found to
`be clearly erroneous. Id. at 734–35. The court explained that,
`“[s]ubtracting that incident from the quantum of facts the court used
`in deciding to depart upward, we cannot conclude whether the
`sentencing court still would have decided to depart upward and, if so,
`by how much. In other words, we cannot conclude that the court’s
`error was harmless.” Id. at 736. Wright demonstrates that at least
`
`
`
`

`
`15
`establish that the district court’s discussion of the April 4
`shooting did not affect its sentencing decision.
` The
`Government first argues that the error was harmless because
`Kpodi was given a sentence at the bottom of the Guidelines
`range. Kpodi requested a below-Guideline sentence because
`of, inter alia, his continuing efforts to remain part of his
`children’s
`lives.
` The district court
`recognized
`this
`consideration during its balancing of the section 3553 factors9
`and could have granted a downward departure in its discretion.
`The court declined to grant the departure, instead imposing a
`sentence at the low end of the Guidelines range. On
`resentencing, the court remains free to grant a downward
`departure as requested in light of Kpodi’s interest in his family
`when rebalancing the section 3553 factors once the April 4
`evidence is removed from consideration. But the fact that
`Kpodi was sentenced to the bottom of the Guidelines range is
`
`
`one of our sister circuits has remanded for resentencing on the basis
`of the district court’s reliance on a clearly erroneous factual finding.
`See also United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en
`banc) (“A sentence imposed as a result of a clearly erroneous factual
`conclusion will generally be deemed ‘unreasonable’ and, subject to
`the doctrines of plain and harmless error, will result in remand to the
`district court for resentencing.”). The Government claims that
`Wright is distinguishable because the district court in Wright heavily
`relied on the erroneous factual finding in granting the upward
`departure but the April 4 shooting evidence was only one of multiple
`considerations the district court reviewed in reaching the 151–month
`sentence. We remain unconvinced that the April 4 evidence played
`as minor a role in sentencing as the Government contends.
`9 See 6/3/14 Hr’g Tr. 49 (“And it is because . . . he has
`indicated his concern about playing a role in his kids’ lives, which is
`not a newfound calling but one that seems to have been part of his
`history so far, that I feel that rather than sentence at the midpoint of
`the appropriate Guideline range, I’m going to impose a sentence at
`the low end of the Guideline range.”)
`
`
`
`

`
`16
`itself insufficient to render the court’s consideration of the
`April 4 evidence harmless.
`
`The Government also argues that the district court’s error
`was harmless because the April 4 shooting was one of multiple
`incidents that led the court to conclude that Kpodi was likely to
`use guns in furtherance of his drug transactions. The
`Government’s argument, however, again mischaracterizes the
`tone of the sentencing hearing. As discussed, the court stated
`that “there’s no surprise that [Kpodi] also used” guns and “that
`he would engage in a shootout on the residential streets of the
`city.” 6/3/14 Hr’g Tr. 12. The court called the April 4
`incident “chilling,” referenced it specifically in discussing the
`harm to “innocent bystanders, including children,” and
`explained that it was a “very important circumstance” and
`“very
`important consideration”
`in determining “which
`sentence recommendation is appropriate.” Id. at 47–48. The
`district court considered the other Rule 404(b)(2) evidence as
`well as the April 4 evidence during its balancing of the section
`3553 factors but it is a stretch for the Government to claim that
`the court’s reference to the April 4 gunfight had no effect on its
`“selection of the sentence imposed.” Williams, 503 U.S. at
`203. On the basis of the sentencing transcript, we cannot
`conclude that the consideration of the April 4 evidence did not
`have a “substantial and injurious effect or influence” on
`Kpodi’s sentence. Powell, 334 F.3d at 45.
`
`For the foregoing reasons, we vacate Kpodi’s sentence and
`remand for resentencing.
`
`So ordered.