United States v. Sharbutt

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 5 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-5169
(N.D. Okla.)
JIMMY LEE SHARBUTT, (D.Ct. No. 02-CR-78-P)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The 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.
 Appellant Jimmy Lee Sharbutt, a federal prisoner represented by counsel,

appeals his conviction and sentence for being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e). We exercise jurisdiction pursuant

to 28 U.S.C. § 1291, and affirm Mr. Sharbutt’s conviction and sentence.

I. Background

On December 21, 2001, police obtained and executed a search warrant for

Mr. Sharbutt’s residence located in Miami, Oklahoma. During the search,

officers seized a 9mm semiautomatic handgun with a shoulder holster, drug

paraphernalia, drug scales, marijuana, methamphetamine, and other items.

A two-count superceding indictment charged Mr. Sharbutt with one count

of being a felon in possession of a firearm, and one count of possession of a

controlled substance with intent to distribute. Mr. Sharbutt filed a motion to

sever the two counts, a motion to suppress the evidence obtained with the search

warrant, and a motion to exclude evidence of his prior possession of weapons or

involvement in drug transactions pursuant to Federal Rule of Evidence 404(b).

The district court held a suppression hearing, after which it denied the motions to

suppress and to preclude all evidence related to his prior acts, except for one

witness, and granted the motion to sever. During the felon in possession trial, the

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district court also denied Mr. Sharbutt’s motion to introduce a BB gun as

demonstrative evidence. Thereafter, a jury found Mr. Sharbutt guilty of being a

felon in possession of a firearm. After applying an enhancement under United

States Sentencing Guideline (U.S.S.G.) §4B1.4(4) for possessing the firearm in

connection with drug distribution, the district court sentenced him to 262 months

imprisonment and five years supervised release.

II. Issues on Appeal

On appeal, Mr. Sharbutt contends the district court erred by denying his: 1)

motion to suppress evidence obtained from the search warrant because the

affidavit supporting it a) contained insufficient information to establish probable

cause, and b) omitted material facts affecting the decision to authorize it;

2) motion to preclude evidence of his prior possession of firearms, and sale and

use of drugs because of the undue prejudice created; 3) motion to preclude

testimony of a prosecution witness for lack of notice; and 4) motion to introduce a

BB gun as demonstrative evidence because counsel did not know the BB gun was

almost identical to the firearm found in his house until the day before the motion

was made.

In response, the government contends the district court appropriately denied

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these motions, and seeks affirmance of Mr. Sharbutt’s conviction. Thereafter,

Mr. Sharbutt filed a supplemental brief, raising a sentencing issue which

challenges the constitutionality of the enhancement of his sentence based on the

district court’s finding he used or possessed the firearm in connection with a

controlled substance offense or a crime of violence. In so doing, he relies on the

Supreme Court’s decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct.

2531 (U.S. June 24, 2004), claiming the enhancement must be found beyond a

reasonable doubt by a jury. The government opposes his request for remand of

his sentence, based on its contention Blakely does not invalidate the United States

Sentencing Guidelines.

III. Discussion

A. Affidavit Supporting Search Warrant

Detective Danny Green executed a three-page affidavit supporting the

search warrant at issue in this case, in which he recounted his experience and

training in narcotics investigations, and relayed recent information about Mr.

Sharbutt obtained from Dana Witcraft during her December 2001 arrest on a

felony warrant. After Ms. Witcraft gave officers permission to search her

residence, they discovered several baggies containing methamphetamine. Ms.

Witcraft stated she bought methamphetamine from Mr. Sharbutt at his house in

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the Eastgate addition of Miami, Oklahoma, every week since August 2001.

When purchasing the drug, she told Mr. Sharbutt what she wanted, which was

usually an “eight-ball” (1/8 ounce) of methamphetamine, and he sometimes

weighed the drug in front of her. She also stated she saw several ounces of

methamphetamine in his house on different occasions, and last purchased

methamphetamine from him at his house two days earlier, on December 19, 2001.

In the affidavit, Detective Green further explained that, based on his

training and experience in narcotics investigations, traffickers of illegal

substances often accumulate large amounts of cash and valuables kept in safes;

keep drug paraphernalia to weigh and package drugs for distribution; maintain

documentation on drug sales; and utilize firearms and other dangerous weapons

for the purpose of securing and guarding their cash and drugs. Detective Green

concluded his affidavit by stating that based on his investigation and experience,

it was his opinion that these items were presently being concealed at Mr.

Sharbutt’s residence for criminal purposes. In addition to Ms. Witcraft’s

description of Mr. Sharbutt’s home being in the Eastgate addition of Miami,

Detective Green provided Mr. Sharbutt’s street address, together with a

description of the exterior of his house. Based on the foregoing information, the

magistrate judge issued the search warrant, leading to the arrest of Mr. Sharbutt

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and discovery of incriminating evidence in his home.

In response to Mr. Sharbutt’s motion to suppress the evidence, the district

court later held a suppression hearing at which Detective Green testified,

explaining he possessed personal knowledge of Mr. Sharbutt’s specific street

address and description of the exterior of the house. He also recounted his own

knowledge of Mr. Sharbutt’s activities dealing in methamphetamine, and testified

he believed Ms. Witcraft’s story, based on information he received in other

investigations into Mr. Sharbutt’s methamphetamine dealings and the fact Ms.

Witcraft possessed methamphetamine at the time of her arrest, which corroborated

her statement she purchased an “eight-ball” from him two days before. He noted

no one could consume an entire “eight-ball” of methamphetamine in two days, so

the fact she possessed methamphetamine corroborated her story. He admitted he

did not put certain information in his affidavit, including the fact Ms. Witcraft

had no history of providing reliable information, had been convicted of a drug

offense for which she was on probation, and possessed other items besides

baggies of methamphetamine at her residence, including firearms, drug

paraphernalia, and marijuana.

In denying the motion to suppress, the district court found: 1) the affidavit

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alleged sufficient facts to establish probable cause; 2) a sufficient amount of Ms.

Witcraft’s information was corroborated by extrinsic information to establish her

credibility; 3) the omission of additional information about Ms. Witcraft by

Detective Green did not stem from “reckless disregard for the truth,” “deliberate

falsehood” or a “material omission”; and 4) the omitted information would not

have altered the magistrate judge’s decision to authorize the search, noting the

affidavit made it sufficiently clear she was not a “model citizen.”

On appeal, Mr. Sharbutt renews his assertion the information supporting the

search warrant was unreliable because it was insufficiently corroborated and came

from an informant with no previous history of reliability, who violated her

probation by using drugs, and was in possession of controlled substances and

firearms at the time of her arrest. Because Detective Green took no measures to

verify the location of his residence or the veracity of her statements, Mr. Sharbutt

claims her assertion of first-hand knowledge establishes no substantial basis for

probable cause contraband existed at his residence.

In addition, Mr. Sharbutt maintains material omissions in the affidavit

pertaining to Ms. Witcraft’s felony probation for drugs, use of drugs, and

discovery of drugs and firearms in her home would have affected the magistrate

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judge’s finding of probable cause for issuance of the warrant. He suggests this

additional information would have made this informant’s reliability “greatly

suspect,” leading the magistrate judge not to issue a search warrant.

In addressing Mr. Sharbutt’s contentions, we first consider our standard of

review:

When reviewing a district court’s denial of a motion to suppress, this
court accepts the district court’s factual findings unless they are
clearly erroneous, viewing the evidence in the light most favorable to
the government. However, the ultimate determination of
reasonableness under the Fourth Amendment is a question of law and
is reviewed de novo under the totality of the circumstances.

United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001), cert. denied, 535

U.S. 945 (2002). Unquestionably, probable cause is necessary for issuance of a

search warrant, and must be supported by an oath or affirmation. See United

States v. Mathis, 357 F.3d 1200, 1203 (10th Cir. 2004). “[A] valid probable

cause determination requires only a substantial basis to find that evidence of a

crime was probably present in the place to be searched.” Id. at 1205. “[H]earsay

evidence may form the basis for a probable cause determination,” and therefore:

[i]n testing the sufficiency of probable cause for an officer’s action
even without a warrant, we have held that he may rely upon
information received through an informant, rather than upon his
direct observation, so long as the informant’s statement is reasonably
corroborated by other matters within the officer’s knowledge.

Id. at 1204. While we consider an “informant’s veracity, reliability, and basis of

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knowledge as relevant factors to evaluate,” we also consider “a law enforcement

agent’s opinion, based upon his professional expertise, that evidence of illegal

activity will be found in the place to be searched.” Id. at 1205 (quotation marks

and citations omitted). Finally, we generally “give considerable deference to a

magistrate’s determination of probable cause; a reviewing court’s only duty is to

ensure that the magistrate had a substantial basis for concluding that probable

cause existed.” Id. at 1205 (quotation marks and citation omitted).

In applying our standard of review and the applicable rules in evaluating

probable cause for issuance of a search warrant, we conclude the district court

committed no error. In this case, the affidavit in question plainly stated Ms.

Witcraft was arrested on a felony warrant; frequently purchased

methamphetamine from Mr. Sharbutt at his Eastgate residence; saw several

ounces of methamphetamine at that residence on different occasions; sometimes

saw him weigh the methamphetamine on a scale; purchased an “eight-ball” from

him only two days before; and possessed methamphetamine in her home at the

time of her arrest. Detective Green also clearly outlined his extensive training

and experience in narcotics investigation, and his professional opinion on what

evidence of illegal activity would be found at Mr. Sharbutt’s residence. Under

the totality of the circumstances, we agree with the district court a substantial

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basis existed for the magistrate judge to conclude the affidavit alleged sufficient

facts to establish probable cause of illegal activity evidence at Mr. Sharbutt’s

home.

Moreover, at the suppression hearing, Detective Green further explained he

possessed knowledge of other investigations concerning Mr. Sharbutt’s drug

dealings and his street address, which corroborated the information Ms. Witcraft

gave him concerning his drug dealings and address. Detective Green also

explained the fact Ms. Witcraft still possessed methamphetamine at the time of

her arrest corroborated her statement she purchased an “eight-ball” from Mr.

Sharbutt only two days before. Based on this information, we also agree with the

district court’s determination a sufficient amount of Ms. Witcraft’s information

was reasonably corroborated by other matters within Detective Green’s

knowledge, for the purpose of denying Mr. Sharbutt’s motion to suppress. See id.

at 1204-05.

We next address the issue concerning the omission of additional

information about Ms. Witcraft by Detective Green in the affidavit. The opponent

of a search warrant bears the burden of showing by a preponderance of the

evidence at the suppression hearing that the affidavit intentionally or recklessly

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omitted material information which, if included, would not support a finding of

probable cause, and thereby would alter the magistrate judge’s decision to

authorize the search. See United States v. McKissick, 204 F.3d 1282, 1297 (10th

Cir. 2000).

In this case, nothing in the record indicates Detective Green’s omission of

the additional information at issue was either intentional, reckless or material.

Rather, from the information contained in the affidavit, the magistrate judge was

patently aware of both Ms. Witcraft’s criminal background and her drug use, as

evidenced by the felony warrant for her arrest and her purchase, use and

possession of methamphetamine. Knowing she was already a felon and frequent

drug user, it is unlikely the magistrate judge would have found her possession of

marijuana and other drug paraphernalia, or the violation of her probation for drug

use, material to any reliability determination already made. Likewise, her

possession of firearms is also unlikely to materially change such a determination.

In any event, as previously discussed, the evidence corroborating her statements

sufficiently bolstered the veracity of her statements, so the omission of additional

information about Ms. Witcraft by Detective Green was not material to a

determination on Mr. Sharbutt’s motion to suppress the evidence.

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 B. Prior Unlawful Acts and Motion to Preclude Rule 404(b) Evidence

The next issue we address is Mr. Sharbutt’s motion to preclude evidence of

his prior involvement with drugs and possession of a firearm. In denying the

motion, the district court found the evidence the government sought to introduce

at trial relevant under Federal Rule of Evidence 404(b) for the purpose of

establishing Mr. Sharbutt’s motive in possessing the firearm, his knowing

possession of the firearm, and the firearm’s identity.

As a result, the government introduced evidence of Mr. Sharbutt’s drug use

and sales, and prior possession of the firearm. Specifically, Detective Green and

another officer testified as to items found in Mr. Sharbutt’s home during their

search, including a dead-bolt locking the master bedroom door, and in that

bedroom, a black 9mm semi-automatic handgun with a fully loaded magazine in a

shoulder holster found on top of a wooden chest, together with marijuana,

amphetamine residue, syringes, rolling papers, a scale, smoking pipes and other

items consistent with the distribution and use of drugs.

Several other witnesses also testified they purchased methamphetamine and

marijuana from Mr. Sharbutt at the Eastgate house and/or used the drugs in his

master bedroom, where the gun was found. Many of these witnesses, as well as

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another, also saw Mr. Sharbutt carry or possess a black semi-automatic handgun,

or a gun described as black and silver, which many of them identified as, or like,

the black 9mm semi-automatic handgun discovered in the master bedroom.

At the conclusion of the trial, the district court gave the jury a limiting

instruction, stating evidence presented on Mr. Sharbutt’s possible unlawful acts

and conduct was admitted only for the limited purpose of showing 1) the identity

of the firearm; 2) his motive; and 3) his knowledge of the offense charged. It

further cautioned jurors evidence of other unlawful acts may not be considered

proof of Mr. Sharbutt’s guilt of the specific offense charged, but only for the

limited purposes outlined. On appeal, Mr. Sharbutt contends the prejudicial

nature of the government’s drug and firearm evidence given at trial greatly

outweighed its probative value.

“We review a district court’s decision to admit evidence under [Federal

Rule of Evidence] 404(b) for abuse of discretion.” See United States v.

Kravchuk, 335 F.3d 1147, 1156 (10th Cir.), cert. denied, 540 U.S. 941 (2003).

Under the Federal Rules of Evidence, evidence of prior bad acts may be

admissible if is “relevant” and shows “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.

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R. Evid. 402 and 404(b). Federal Rule of Evidence 403 “permits the district court

to exclude evidence if ‘its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury,’” and

we have held that “the district court has ‘broad discretion to determine whether

prejudice inherent in otherwise relevant evidence outweighs its probative value.’”

United States v. Magleby, 241 F.3d 1306, 1315 (10th Cir. 2001) (quoting Fed. R.

Evid. 403 and United States v. Youts, 229 F.3d 1312, 1319 (10th Cir. 2000)).

Accordingly, evidence of other crimes, wrongs or acts is admissible provided it is

relevant, introduced for a proper purpose, and not unfairly prejudicial.

In this case, the government was required to prove Mr. Sharbutt knowingly

possessed a gun in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and in so

doing, had to counter Mr. Sharbutt’s defense argument and evidence he did not

possess the gun; he did not live, stay or reside in the house where the gun was

found; and that several other individuals either lived in, or had access or keys to

the house. Given guns are a well-known tool of a drug dealer, see United States

v. Becker, 230 F.3d 1224, 1231 (10th Cir. 2000), cert. denied, 532 U.S. 1000

(2001); McKissick, 204 F.3d at 1293, the government’s introduction of evidence

of Mr. Sharbutt’s drug sales at the Eastgate house was clearly relevant for the

purpose of showing motive for possessing the gun and knowing it was there. For

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the same reasons, evidence of the lock on the door to the room where the gun and

other drug-related items were found together was relevant for establishing his

knowledge of, and motive for, possessing the gun at his Eastgate home. Finally,

introduction of evidence of Mr. Sharbutt’s prior possession of the gun at the

house was clearly relevant to establish its identity and his possession and

knowledge of it at that location, and to counter Mr. Sharbutt’s evidence indicating

the possibility someone else with access to the house and bedroom possessed the

gun.

As to any prejudice caused by the evidence at issue, the district court

explained it must determine whether “the danger of undue prejudice outweighs

the probative value of the evidence,” and then carefully outlined the reasons the

evidence met this requirement based on its relevancy for proving the elements of

the crime alleged, i.e., Mr. Sharbutt’s knowing possession of the gun found at the

residence in question. To ensure no undue prejudice arose, the district court gave

a limiting instruction which clearly cautioned the jury that its admission was only

for the limited purpose of showing the identity of the firearm, Mr. Sharbutt’s

motive, and his knowledge of the offense charged. Under the circumstances

presented, we hold the district court did not abuse its discretion in admitting the

contested evidence.

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 C. Exclusion of Prosecution Witness

Next, we address Mr. Sharbutt’s contention that one witness’s testimony

should have been excluded for lack of notice of her testimony until the day of

trial. The government counters Mr. Sharbutt received sufficient notice of this

witness and the substance of her testimony. We agree.

In the government’s Rule 404(b) notice to Mr. Sharbutt, filed two months

before the jury trial, it identified eight witnesses, including the witness at issue,

who would testify Mr. Sharbutt possessed the same or similar 9mm gun found at

his residence. The notice further clearly indicated Mr. Sharbutt threatened the

witness at issue several times with the same 9mm gun. On April 18, 2003, the

Friday before the Monday trial, the district court issued an order determining the

testimony of this witness was too remote because nothing in the government’s

notice established she knew of Mr. Sharbutt’s possession of a gun after she

ceased living with him in 1999. On the morning of the trial, the government filed

an offer of proof to introduce evidence the same witness saw Mr. Sharbutt as

recently as two weeks before the search of his residence with the same 9mm

handgun. In so doing, the government acknowledged it obtained this information

only five days before, on April 16, 2003, when it interviewed her. The following

day, the defense noted its objections, after which the district court allowed

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admission of her testimony into evidence.

Clearly, under the situation presented, Mr. Sharbutt enjoyed a two-month

period in which to prepare his defense with respect to this witness’s testimony,

and did not learn until three days before the Monday morning trial that her

testimony would not be admitted as being too remote in time. Meanwhile, the

government also did not know until three days before trial that her testimony

would not be admitted, and then made the offer of proof. While the government

certainly could have notified Mr. Sharbutt’s counsel of its intent to file its offer

of proof over the weekend, the district court did not err in allowing the testimony,

given Mr. Sharbutt received notice of the substance of her testimony two months

in advance and clearly had time to prepare his defense thereto. We further

conclude her testimony did not unduly prejudice Mr. Sharbutt, given the extended

length of time he had to prepare for it and the fact he knew of, and prepared for,

like testimony of other government witnesses who also testified he possessed the

same gun. Cf. United States v. Affleck, 776 F.2d 1451, 1456 (10th Cir. 1985).

While Mr. Sharbutt seems to complain the district court did not explicitly

articulate its reason for admitting this witness’s testimony under the government’s

offer of proof, it is clear the district court no longer considered her testimony too

remote in time, given she witnessed Mr. Sharbutt with the gun only two weeks

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before his arrest, and not solely before 1999.

D. Motion on BB Gun and Defendant’s Evidence

On the second day of the trial, after the government rested, Mr. Sharbutt

moved the district court to allow introduction of a BB pistol as demonstrative

evidence. At the time of the request, no witness had been questioned about a BB

gun and the government had released its witnesses. Mr. Sharbutt’s counsel

advised the district court: 1) the BB gun was like one Mr. Sharbutt once

possessed; 2) they only received the BB gun the prior afternoon; and 3) they only

became aware of the fact the black pellet gun looked real after talking to a

defense witness the Friday before the trial. After the government objected to

introduction of the BB gun on grounds Mr. Sharbutt’s request did not comply with

Federal Rule of Criminal Procedure 16(b), the district court denied Mr. Sharbutt’s

request, concluding, in part, that the factual information regarding the BB gun

was available to Mr. Sharbutt the Friday before he sought its admission the

following Tuesday. Nevertheless, the district court allowed Mr. Sharbutt to

introduce the testimony of two witnesses who stated he possessed a BB pistol

which could be mistaken as the gun obtained from the search.

The standard of review for admission of demonstrative evidence is whether

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the district court abused its discretion and whether such evidence was or would be

unduly prejudicial to the objecting party. See United States v. Birch, 39 F.3d

1089, 1093 (10th Cir. 1994). Under the Federal Rules of Criminal Procedure, a

defendant has a duty to disclose to the government, and permit it to inspect, any

object intended for use in the defendant’s case-in-chief. Fed. R. Crim. P.

16(b)(1)(A)(ii).

In this case, Mr. Sharbutt was required, under Rule 16(b)(1)(A)(ii), to

disclose to the government in advance of trial any evidence he planned to use in

his case-in-chief. Admittedly, Mr. Sharbutt’s counsel did not discover the fact

that a defense witness could testify to the likeness of the BB pistol with the 9mm

gun until the Friday before the trial. However, his counsel did not move for its

introduction until the second day of the trial, well after the government rested its

case and released its witnesses. See, e.g., United States v. Weiss, 930 F.2d 185,

199 (2d Cir. 1991) (concluding district court did not abuse its discretion in

excluding documents on the basis of unfair advantage, where the defense found

them on Friday, but did not inform the government of them until the middle of the

trial the following Monday, after government rested its case and released its

witnesses who lived out of state). In addition, the government clearly never

received notice of the defense’s BB gun theory or the opportunity to examine the

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gun and question witnesses on it in advance of trial. Under the circumstances

presented, the government was precluded from preparing any cross-examination

or calling or re-calling any witnesses for the purpose of rebuttal. In addition, if

Mr. Sharbutt owned a BB gun or pistol which looked like the one discovered in

his home, he clearly knew of the similarity of that gun with the one found in his

home well before the Friday interview of the witness in question, and therefore,

through counsel, had ample time in advance of the trial to both notify the

government of the intended introduction of a BB gun at trial and interview

witnesses who might testify as to previously seeing the BB gun in his possession.

For these reasons, permitting Mr. Sharbutt to introduce the BB pistol at the trial

would have undoubtedly given the defense an unfair advantage and unduly

prejudiced the government in prosecuting its case.

Moreover, while the district court precluded use of the BB gun as

demonstrative evidence, it nevertheless permitted Mr. Sharbutt to pursue his

defense theory related to the BB gun by allowing two witnesses to testify to the

similarities of Mr. Sharbutt’s BB pistol with the gun discovered in his bedroom.

Accordingly, the district court did not abuse its discretion in excluding

introduction of the BB gun at trial.

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 E. Blakely Sentencing Issue

After filing his appeal, Mr. Sharbutt filed a supplemental brief challenging

the constitutionality of his sentence, based on the district court’s finding he used

or possessed the firearm in connection with a controlled substance offense or a

crime of violence, pursuant to U.S.S.G. §4B1.4(b)(3)(A). Mr. Sharbutt previously

challenged the enhancement in his objections to the Presentencing Report and at

the sentencing hearing. Pursuant to the Supreme Court’s decision in Blakely v.

Washington, ___ U.S. ___, 124 S. Ct. 2531 (U.S. June 24, 2004), he claims the

enhancement must be found beyond a reasonable doubt by a jury.

Mr. Sharbutt’s enhancement claim misses the point. As explained

hereafter, it is clear Blakely, like Apprendi v. New Jersey, 530 U.S. 466 (2000),

does not “apply to sentencing factors that increase a defendant’s guideline range

but do not increase the statutory maximum.” United States v. Sullivan, 255 F.3d

1256, 1265 (10th Cir. 2001), cert. denied, 534 U.S. 1166 (2002).

In this case, the district court sentenced Mr. Sharbutt pursuant to the Armed

Career Criminal Act, under 18 U.S.C. § 924(e), which provides that a person who

violates § 922(g) and has three previous convictions for a violent felony or a

serious drug offense, or both, is subject to a statutory minimum mandatory

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sentence of fifteen years in custody and a maximum sentence of life. See Custis

v. United States, 511 U.S. 485, 487 (1994). With regard to the use of prior

convictions to enhance a sentence, the Supreme Court, in deciding Blakely,

unequivocally restated the proposition announced in Apprendi, 530 U.S. at 490,

that “[o]ther than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S. Ct. at 2536

(emphasis added). Applying this proposition, we have pointed out that a

defendant with three prior violent felony convictions who is subject to a sentence

enhancement under the Armed Career Criminal Act may not successfully

challenge that sentence under Apprendi. See United States v. Dorris, 236 F.3d

582, 586-87 (10th Cir. 2000), cert. denied, 532 U.S. 986 (2001). Blakely does not

affect this holding.

As a consequence, in this case, the three prior convictions supporting Mr.

Sharbutt’s sentence need not be presented to a jury. Because Mr. Sharbutt’s 262-

month sentence is below the prescribed statutory maximum sentence of life

provided under 18 U.S.C. § 924(e), his sentence does not raise or implicate any

constitutional concerns under either Apprendi or Blakely. Accordingly, because

his sentence is below the statutory maximum, his argument that a jury, not the

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district court, should have determined the facts applicable to an increase in his

guideline range must fail. See Sullivan, 255 F.3d at 1265.

IV. Conclusion

For the foregoing reasons, we AFFIRM Mr. Sharbutt’s conviction and

sentence.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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