United States v. Hardridge

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 30, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 02-5208
(D. Ct. No. 00-CR-126-C)
STEPHEN RAMONT HARDRIDGE, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, EBEL, and HARTZ, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

A jury found Defendant-Appellant Stephen Ramont Hardridge guilty of

conspiring to possess and distribute narcotics. The District Court sentenced Mr.

Hardridge to 292 months’ incarceration to be followed by ten years’ supervised

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
release and imposed $10,100 in assessments and fines. We affirmed. See United

States v. Hardridge, 100 Fed. Appx. 743 (10th Cir. June 7, 2004) (unpublished)

(“Hardridge I”). The Supreme Court summarily reversed and remanded our

decision in light of United States v. Booker, 543 U.S. —, 125 S. Ct. 738 (2005).

See Hardridge v. United States, — U.S. —, 125 S.Ct. 1020 (Jan. 24, 2005). We

GRANT Mr. Hardridge’s motion to file a supplemental reply brief, REINSTATE

all non-sentencing portions of our previous opinion, as well as our previous

discussion of the imposition of fines, and upon reconsideration AFFIRM Mr.

Hardridge’s sentence.

I. BACKGROUND

The Government prosecuted Mr. Hardridge for being a member of an

extensive drug conspiracy. The government presented evidence at trial showing

that the central player in the conspiracy was Darrell Bellamy of Phoenix, Arizona.

From Phoenix, Mr. Bellamy coordinated shipments of powder cocaine, crack

cocaine, and marijuana to various cities, including Tulsa, Oklahoma; Wichita,

Kansas; and Detroit, Michigan. The government asserts that Mr. Hardridge was a

member of this conspiracy. A federal grand jury indicted Mr. Hardridge for

conspiring to possess and distribute cocaine, crack cocaine, and marijuana in

violation of 21 U.S.C. § 846. After a twenty-three-day trial involving over fifty

witnesses, a jury convicted Mr. Hardridge on all counts.

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 In Hardridge I, Mr. Hardridge brought challenges to both his conviction

and his sentence. On remand from the Supreme Court he once again challenges

both his conviction and his sentence. The Supreme Court, however, remanded to

us only “for further consideration in light of Booker v. United States.” Hardridge

125 S.Ct. at 1020. As we find nothing in Booker that calls Mr. Hardridge’s

conviction into question, we limit our review on remand to the sentence and

reinstate all non-sentencing portions of our previous opinion.

II. DISCUSSION

In the District Court and in Hardridge I, Mr. Hardridge challenged the

District Court’s findings as to the type and amount of narcotics he trafficked and

the factual basis for an obstruction of justice enhancement under U.S. Sentencing

Guidelines Manual § 3C1.1 (2001) (“U.S.S.G.”). 1 In Hardridge I, we reviewed

these factual findings for clear error, see United States v. Shumway, 112 F.3d

1413, 1426 (10th Cir. 1997), and held that these findings were supported by the

record. Booker does not cause us to reconsider this issue. See United States v.

Doe, 398 F.3d 1254, 1257 & n.5 (10th Cir. 2005) (holding post-Booker that

“[w]hen reviewing a district court’s application of the Sentencing Guidelines,. . .

we review any factual findings for clear error.”). As such, we re-adopt our

1
In Hardridge I, Mr. Hardridge also challenged the propriety of the fines
the District Court imposed. He does not contest the imposition of these fines on
remand. As such, we reinstate our previous opinion in this regard.

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previous holding that, based on the record, the District Court did not clearly err in

finding that Mr. Hardridge trafficked 500 grams of crack cocaine and that, during

trial, he passed a note to a witness in an attempt to influence her testimony and

therefore obstruct justice. As such, we affirm our holding that the District Court

did not err in determining Mr. Hardridge’s sentence under the Guidelines.

A.

Of course, post-Booker, this does not end our analysis. In Booker, the

Court “reaffirm[ed its] holding in Apprendi: Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.”

Booker, 125 S.Ct. at 756. “As a result, the Court held that mandatory application

of the Guidelines violates the Sixth Amendment when judge-found facts, other

than those of prior convictions, are employed to enhance a sentence.” United

States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005) (en banc). To

remedy this error the Court “severed two provisions of the Sentencing Reform Act

of 1984, . . . [n]amely, . . . 18 U.S.C. § 3553(b)(1), which made the imposition of

a Guidelines sentence mandatory in the vast majority of cases, and those portions

of 18 U.S.C. § 3742(e) that established standards of review on appeal.” Id.

“Henceforth, courts are still required to consider the Guidelines in determining

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sentences, but they are not required to impose a sentence within the Guidelines

range.” Id.

Here, based upon the drug-type, drug-amount, and obstruction-of-justice

enhancements, the District Court determined that Mr. Hardridge had an offense

level of 38 and a criminal history category of III. A mandatory application of the

Guidelines produced a sentencing range of 292–365 months’ incarceration; the

court sentenced him to 292 months. See U.S.S.G. Ch.5, Pt. A. Without the

quantity of narcotics, type of narcotics, and U.S.S.G. § 3C1.1 enhancements, Mr.

Hardridge would have had an offense level of 32, resulting in a 151–188 month

sentencing range. See id. Mr. Hardridge, however, was subject to a 240-month

minimum sentence due to his previous drug-trafficking conviction. See 21 U.S.C.

§ 841(b)(1)(A) (“If any person commits [a § 841(b)(1)(A)(i)–(viii)] violation after

a prior conviction for a felony drug offense has become final, such person shall

be sentenced to a term of imprisonment which may not be less than 20 years”).

Thus, on remand, Mr. Hardridge asserts that the District Court violated his Sixth

Amendment rights when it applied the Guidelines in a mandatory fashion and

made factual findings (other than the fact of prior convictions), which resulted in

the imposition of a sentence 52 months above the maximum that would apply in

the absence of such findings. See Gonzalez-Huerta, 403 F.3d at 731 (describing

scenarios such as this as “constitutional Booker error”).

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 B.

Mr. Hardridge fails, however, to address the threshold question of whether

we review for plain error, because the Booker issue was waived below, or for

harmless error, because the issue was preserved. Compare Fed. R. Crim. P. 52(a)

with Fed. R. Crim. P. 52(b). Apparently, Mr. Hardridge believes he preserved his

Booker challenge, and thus we review for harmless error, as he relies heavily on

United States v. Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005)—a case

involving harmless error. The Government contends, and we agree, that Mr.

Hardridge did not make this argument in the District Court because Mr. Hardridge

only argued that there was insufficient evidence to support the court’s factual

findings. We recently held that this sufficiency-of-the-evidence argument does

not preserve a constitutional Booker challenge on appeal. United States v. Dazey,

403 F.3d 1147, 1173–74 (10th Cir. 2005). Thus, we review only for plain error.

Id. at 1174.

“Plain error occurs when there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403

F.3d at 732 (quotation marks omitted). Because we face constitutional Booker

error here, we apply this test less rigidly than in the non-constitutional context.

Dazey, 403 F.3d at 1174. There can be no doubt that Mr. Hardridge’s 292-month

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sentence, in light of Booker, was erroneously imposed and plainly so. See id. at

1174–75. Nonetheless, we cannot remand for resentencing unless Mr. Hardridge

can meet his burden to satisfy both the third and fourth prongs of plain-error

review as well. Id. at 1174–75, 1178.

C.

On remand, Mr. Hardridge does not specifically address either the third or

fourth prongs of plain-error review. The closest Mr. Hardridge comes to

addressing these issues is his assertion, unsupported by the record or law, that

“[t]he Trial Court would have probably gone lower, had it not been working under

a mandatory system.” We construe this as an argument that Mr. Hardridge’s

substantial rights were affected. Mr. Hardridge’s unsupported intuitions,

however, are not sufficient to satisfy the third prong of plain-error review. See

Romano v. Oklahoma, 512 U.S. 1, 14 (1994) (holding in a capital case that the

defendant could not demonstrate that substantial rights were affected when that

“conclusion necessarily rests upon one’s intuition.”); Gonzalez-Huerta, 403 F.3d

at 740–41 (Tacha, C.J., concurring). Mr. Hardridge, then, has failed to convince

this Court to correct the sentencing error.

D.

To assure thorough post-Booker review of this case on remand, we have

independently reviewed the record in an attempt to fashion an argument on Mr.

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Hardridge’s behalf supporting resentencing. Having done this review, we find no

grounds for resentencing because Mr. Hardridge cannot meet either the third or

fourth prong of plain error review.

To satisfy the third prong of plain-error review, Mr. Hardridge “bears the

burden to establish by a reasonable probability based upon the record on appeal

that his substantial rights were affected by the District Court’s [finding of facts

and] mandatory application of the Guidelines.” Id. at 736. As we outlined

recently in Dazey, there are at least two ways to show that one’s substantial rights

are affected in a constitutional Booker error case. 403 F.3d at 1175.

“First, if the defendant shows a reasonable probability that a jury applying

a reasonable doubt standard would not have found the same material facts that a

judge found by a preponderance of the evidence, then the defendant successfully

demonstrates that the error below affected his substantial rights.” Id. To conduct

this inquiry, the court of appeals reviews the evidence submitted at the sentencing

hearing and the bases for objections the defendant made to the facts on which the

sentence was predicated. Id. In Dazey, the defendant met this standard by

“strenuously contest[ing] the factual basis for the sentencing enhancements [by]

presenting [countervailing] evidence” that allowed us to “conclude [that] there is

a reasonable probability that a jury evaluating the evidence presented at trial

would not determine, beyond a reasonable doubt,” that the factual predicate for

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the sentencing enhancements were proven. Id. at 1177.

Here, we face a very different scenario. While the Government relied upon

trial testimony to establish that Mr. Hardridge trafficked 500 grams of crack

cocaine, Mr. Hardridge offered no countervailing evidence at trial or sentencing.

Ms. Natale, a government trial witness, testified as follows. After delivering six

kilograms of cocaine powder to Mr. Hardridge and others in the conspiracy, she

was instructed to return it because it was “bad” (i.e., brown and crumbly). She

testified that the cocaine was bad because “when they cooked it [i.e., transformed

the powder cocaine to crack cocaine], [it] was a dark brown crumbly color.” She

further testified that she “saw the cocaine powder and the cocaine base [i.e., crack

cocaine,] . . . when [Mr.] Hardridge returned the six kilograms to her.” Mr.

Hardridge argues that the testimony of Ms. Natale should be discounted because

“she merely assumed that the powder had been cooked [and thus turned into crack

cocaine]” and that “[s]he did not witness a cook, and no one told her about a

cook.” Here, unlike Dazey, all we have is an attempt to discredit a witness. Cf.

403 F.3d at 1177. Mr. Hardridge presented no countervailing evidence

whatsoever in response to Ms. Natale’s testimony. As such, we cannot “conclude

[that] there is a reasonable probability that a jury evaluating the evidence

presented at trial would not determine, beyond a reasonable doubt,” that Mr.

Hardridge cooked the powder cocaine to create 500 grams of cocaine base. Id.

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 We face a similar issue with the obstruction of justice enhancement. This

enhancement was based upon the following facts. At trial, Mr. Hardridge passed

a note to his girlfriend, Valvetta Boyd, who was present in the courtroom.

Pursuant to the note’s instructions, Ms. Boyd discarded the note after reading it.

In preparation for her testimony, the government asked her to reconstruct the note

to the best of her memory. The reconstructed note read, “I know you and

Rashonda are good friends. Tell her to tell her mother-in-law [i.e., Netha Beth

Taylor, who was to be called as a witness the next day,] that they don’t have shit

on us. They are trying to make a case. Put this letter in the trash.” Mr.

Hardridge claims that the note merely stated, “in vulgar terms, that the

government had no case against him.” In contrast, the Government, pointing to

Ms. Boyd’s reconstruction of the note and her accompanying testimony, argues

that the note was an attempt to discourage Ms. Taylor from testifying. Again,

unlike Dazey, all we have is an attempt to put a spin on what is otherwise clear

and conclusive testimony. Cf. 403 F.3d at 1177. As such, we cannot “conclude

[that] there is a reasonable probability that a jury evaluating the evidence

presented at trial would not determine, beyond a reasonable doubt,” that Mr.

Hardridge attempted to influence a witness. Id.

The second way “a defendant may show that the district court’s error

affected his substantial rights [is] by demonstrating a reasonable probability that,

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under the specific facts of his case as analyzed under the sentencing factors of 18

U.S.C. § 3553(a), the district court judge would reasonably impose a sentence

outside the Guidelines range.” Id. at 1175 (note omited). This may be

demonstrated when the district court states that the defendant’s conduct, based on

this particular record, did not warrant the minimum Guidelines sentence. Id. In

this case, the District Court did not make any such statement. Thus, we conclude

that Mr. Hardridge’s substantial rights were not affected.

E.

Even if Mr. Hardridge could show that his substantial rights were affected,

he cannot show that the integrity of the judiciary would be harmed by affirming

his sentence; thus, he is not entitled to resentencing. “In the context of an alleged

constitutional error, the relaxed [plain-error] standard means we do not require

the exceptional showing required to remand a case of non-constitutional error.

Nevertheless, the defendant still bears the burden of showing that an exercise of

our discretion is appropriate.” Id. at 1178.

In the constitutional Booker error context, “[e]vidence that would tend to

support an exercise of our discretion under this standard . . . include[s]: (a) a

sentence increased substantially based on a Booker error; (b) a showing that the

district court would likely impose a significantly lighter sentence on remand; (c) a

substantial lack of evidence to support the entire sentence the Guidelines required

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the district court to impose; (d) a showing that objective consideration of the §

3553(a) factors warrants a departure from the sentence suggested by the

Guidelines; or (e) other evidence peculiar to the defendant that demonstrates a

complete breakdown in the sentencing process.” United States v. Dowlin, — F.3d

— 2005 WL 1155882 at *18 (10th Cir. 2005) (internal citations omitted). These

factors do not favor resentencing in this case because we find Mr. Hardridge’s

appeal nearly indistinguishable from our recent United States v. Magallanez

opinion. — F.3d. —, 2005 WL 1155913 (10th Cir. 2005).

In Magallanez, the defendant, like Mr. Hardridge, was convicted of

participation in a drug trafficking conspiracy. Id. at *1. The district court in

Magallanez, as here, made factual findings as to the amount of methamphetamine

that the defendant trafficked that resulted in an enhancement of his sentence in

violation of the Sixth Amendment. Id. at *9. Nonetheless, we determined that

the defendant failed to establish that this error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Id.

We provided the following reasons in Magallanez. First, the defendant’s

“sentence is within the national norm and there is no record evidence to support a

lower sentence.” Id. We face the same situation here. The District Court

sentenced Mr. Hardridge to the Guidelines sentence, which represents the national

norm. See Gonzalez-Huerta, 403 F.3d at 738–39. Further, Mr. Hardridge has

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presented no countervailing evidence at the sentencing hearing or at trial to

support a lower sentence. Rather, he merely attacks the credibility of the

Government’s witnesses.

Second, in Magallanez, we found that “the district court did not merely find

the sentencing-enhancement facts by a preponderance of the evidence. The court

expressly noted that those facts were proved ‘beyond any doubt in my mind.’”

2005 WL 1155913 at *6. We have similar statements from the bench here. At

sentencing when Mr. Hardridge objected to the finding that he trafficked in crack

cocaine, the District Court concluded: “[C]ertainly I say that at the trial when I

heard the testimony I was pretty much convinced, and I don’t think anybody

questioned the fact that there was an attempt to cook, and that that’s how they

discovered the cocaine was bad . . . . [That is to say] it was to be converted into

crack cocaine.” The District Court made similar statements when Mr. Hardridge

objected to the court’s finding as to the amount of crack cocaine. After hearing

Mr. Hardridge’s objection, the court inquired if counsel had “some testimony or

evidence you want to put on” to substantiate the objection. Counsel replied, “No,

Your Honor.” The court responded: “Well, it seems to the Court that the half-

kilo, in view of what was in hand at the time, and in view of what the evidence

indicates that intent was, to convert this, a half a kilo is a very, very conservative

estimate.” Moreover, the court indicated that it “thought [a finding of only 500

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grams] was quite low.” As we found in Magallanez, these statements in this case

“strongly suggest[] that even with greater latitude, post-Booker, to take the weight

of the evidence in support of sentencing enhancements into account, the court

would reach the same conclusion regarding drug quantity.” Id. at *9.

Furthermore, the District Court made similar comments about its degree of

certainty in its findings regarding the obstruction of justice enhancement. After

considering Mr. Hardridge’s objection to the purpose of the note the judge stated:

“[T]he Court felt that it was certainly - - there wasn’t any other reason for that

communication to be given. There was only one reason, only one logical reason,

for having it worded the way it was, and that was to influence a prospective

witness.” As we concluded in Magallanez:

In light of the district court’s high degree of confidence in its finding
of drug quantity [and the intent behind the note to Ms. Boyd], the
lack of any basis in the record to doubt the accuracy of the court’s
calculations, and the absence of any reason to think the Guidelines
range produced an inappropriate sentence under the facts of this case,
a remand would be an exercise in futility.

Id. at *10. Thus, we conclude that Mr. Hardridge cannot establish that affirming

his sentence would seriously affect the fairness, integrity, or public reputation of

judicial proceedings. See also United States v. Duncan, 400 F.3d 1297 (11th Cir.

2005) (holding that the district court’s constitutional Booker error did not rise to

level of plain error, when it relied on judge-determined fact that cocaine powder

had been converted into crack cocaine in order to set drug defendant’s base

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offense level higher than it would have been set using only the jury’s special

verdict).

III. CONCLUSION

On remand from the Supreme Court in light of Booker, we do not revisit

our previous opinion affirming Mr. Hardridge’s conviction. Further, on plain-

error review, we cannot reverse Mr. Hardridge’s 292-month sentence. Therefore,

we GRANT Mr. Hardridge’s motion to file a supplemental reply brief,

REINSTATE all non-sentencing portions of our previous opinion, as well as our

previous discussion of the imposition of fines, and upon reconsideration in light

of Booker AFFIRM Mr. Hardridge’s sentence.

Ebel, J. concurs in the result.

ENTERED FOR THE COURT,

Deanell Reece Tacha
Chief Circuit Judge

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