United States v. Mozee

F I L E D
United States Court of Appeals
Tenth Circuit

APR 27 2005

PATRICK FISHER
PUBLISH Clerk

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-8015

ARMOND EUGENE MOZEE,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 03-CR-196-J)

Robert R. Rogers, Assistant Federal Defender, Cheyenne, Wyoming, for
Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney (Matthew H. Mead, United
States Attorney, with him on the briefs), Casper, Wyoming, for Plaintiff-Appellee.

Before SEYMOUR, MURPHY and McCONNELL, Circuit Judges.

SEYMOUR, Circuit Judge.
 Armond Eugene Mozee entered a plea of guilty to a charge of being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

At sentencing, Mr. Mozee’s guidelines range was enhanced by four offense

levels, pursuant to U.S.S.G. § 2K2.1(b)(5), on the basis of the district court’s

finding that Mr. Mozee possessed a firearm in connection with the commission of

another felony offense. Incorporating the four-level enhancement, the court

determined Mr. Mozee’s guidelines range was 100 to 120 months and sentenced

him to 120 months incarceration. Mr. Mozee advances several theories to support

his contention that the district court erred in finding he possessed a firearm in

connection with the commission of another felony. He also argues his Sixth

Amendment rights were violated pursuant to Blakely v. Washington, 124 S. Ct.

2531 (2004). For the reasons stated below, we AFFIRM.

I

It is undisputed that on July 14, 2003, a loaded firearm in the immediate

possession of Mr. Mozee was discharged. It is further undisputed that the bullet

expelled from the discharge struck Mr. Mozee’s former girlfriend, Susan

Ferguson. The bullet entered her body at the upper left side of her back and

exited from the middle of her right buttock. The factual circumstances leading up

to and resulting in the shooting are in dispute. Of particular significance is the

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question of whether the shooting was accidental or intentional in nature. Based

on the facts stated below, the district court determined, by a preponderance of the

evidence, that the shooting was intentional.

After the shooting incident, the Cheyenne Police Department (CPD) was

notified that Ms. Ferguson had been admitted to the hospital suffering from a

suspicious gunshot wound. Officer Radomicki and Detective Weese were the

initial CPD investigating officers dispatched to the hospital. According to Officer

Radomicki, Ms. Ferguson relayed a series of stories regarding how she had

sustained her injuries, which ranged from being struck by a rock thrown from a

passing car in the street to a drive-by shooting. When Detective Weese arrived at

the hospital, he examined Ms. Ferguson’s wounds where the bullet had entered

and exited her body. He did not see any gun powder burn marks around her

entrance wound (commonly referred to as “stippling” or “tattooing”), the presence

of which is one method of determining whether the gunshot occurred at close

range. After the examination, Detective Weese proceeded to the residence Ms.

Ferguson shared with Mr. Mozee in Cheyenne, Wyoming.

Upon his arrival at the Ferguson-Mozee residence, Detective Weese met

Mr. Mozee and questioned him regarding the shooting incident. Mr. Mozee’s first

version of events was nearly identical to the second story Ms. Ferguson had

provided Officer Radomicki: that Ms. Ferguson sustained her injuries as a result

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of a drive-by shooting. Detective Weese requested that Mr. Mozee accompany

him to the CPD to discuss the matter further. Mr. Mozee agreed and, once the

pair arrived at the CPD, the detective began a second interview.

Mr. Mozee elaborated on his initial version of events, again denying any

involvement in the shooting. He said he first became aware of the shooting when

he witnessed Ms. Ferguson lying on a couch in their residence with blood coming

from the area of her back. He claimed he then called a friend, Vicki Hoffman,

who resided in Loveland, Colorado, and requested she drive approximately 70

miles to Cheyenne to assist him with the situation. After Ms. Hoffman arrived

from Loveland, she took Ms. Ferguson to the hospital.

Detective Weese did not believe Mr. Mozee and pressed him further. Mr.

Mozee then said he had accidentally shot Ms. Ferguson while they were arguing

in their home. He claimed he picked up his Colt .380 caliber handgun from a

nearby table during the argument. While he was in the process of placing the gun

in the waistband of his pants, where he routinely carried it, Ms. Ferguson grabbed

his arm and caused the gun to sweep past her body. Mr. Mozee reported that the

gun discharged during this “sweep,” wounding Ms. Ferguson.

Detective Weese was not convinced by Mr. Mozee’s story. His skepticism

was principally fueled by his belief that the bullet’s trajectory through Ms.

Ferguson’s body would have only occurred as it did if Ms. Ferguson was in a

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crouching position with her head oriented toward her knees at the time of the

shooting. After his interview with Mr. Mozee, therefore, Detective Weese

returned to the hospital to speak with Ms. Ferguson. The detective informed her

of the reason for his visit and she offered a third version of events. According to

Ms. Ferguson, she and Mr. Mozee were arguing and, at some point, she turned to

walk out of the door when she felt a sharp burn or pain in her lower middle back.

Detective Weese said Ms. Ferguson told him that she was “getting out of the

house, and I got shot.” Rec., vol. IV at 24.

At Mr. Mozee’s sentencing hearing, Detective Weese testified that while

Ms. Ferguson’s latest version of events was more consistent with the geometry of

her wounds, her story still failed to fully explain the bullet’s trajectory. The

detective remained convinced that when the shot was fired, Ms. Ferguson was

crouched down, leaning forward, and facing her shooter. On cross-examination,

Detective Weese conceded that there were at least theoretically conceivable

physical contortions two people in a struggle could achieve that might explain

Ms. Ferguson’s wounds. He also acknowledged that Ms. Ferguson had not

characterized the shooting as either intentional or accidental; she simply said, “I

got shot.”

Vicki Hoffman also testified at Mr. Mozee’s sentencing hearing. She

reported that, upon her arrival at the Ferguson-Mozee residence, she observed Ms.

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Ferguson’s condition and asked Mr. Mozee what had happened. Ms. Hoffman

initially testified that “he really didn’t say anything,” and “he just sat there.” Id.

at 26. Once pressed, however, she testified that Mr. Mozee responded: “[Ms.

Ferguson] was fucking with me and wouldn’t leave me alone.” Id. at 27. Ms.

Hoffman admitted that Mr. Mozee repeated this line several times before she

finally took Ms. Ferguson to the emergency room.

The final witness at the sentencing hearing was Shirley Martinez, the

victim-witness coordinator for the Wyoming United States Attorney’s Office. She

testified that Ms. Ferguson contacted her approximately two weeks after the

shooting, inquiring whether Mr. Mozee would be paroled or released from jail.

From August 1 until August 12, 2003, Ms. Martinez spoke with Ms. Ferguson

several times. Their conversations focused on domestic violence issues and the

possibility of Ms. Ferguson attending domestic violence counseling. Based on her

17 years of experience and training in the area of domestic violence, Ms. Martinez

opined that Ms. Ferguson was afraid of Mr. Mozee and the possibility that he

might be released from jail.

The officer who prepared Mr. Mozee’s presentence report (PSR) evaluated

the facts and circumstances of Ms. Ferguson’s shooting and proposed a four-level

enhancement to Mr. Mozee’s base offense level, pursuant to § 2K2.1(b)(5),

because his felony possession of the firearm was “in connection with” the felony

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offense of aggravated assault. Mr. Mozee objected to the enhancement,

contending the discharge of the weapon was accidental and therefore did not

support a finding that he committed an aggravated assault. The district court was

unpersuaded by Mr. Mozee and found that the shooting of Ms. Ferguson was

intentional and volitional, rather than simply the product of an accidental

discharge of the weapon. As a consequence, the court applied the four-level

enhancement for Mr. Mozee’s possession of a firearm in connection with an

aggravated assault. Mr. Mozee appeals.

II

The relevant sentencing provision provides a four-level enhancement if the

court finds, by a preponderance of the evidence, that the defendant “used or

possessed any firearm or ammunition in connection with another felony offense;

or possessed . . . any firearm or ammunition with knowledge, intent, or reason to

believe that it would be used or possessed in connection with another felony

offense.” U.S.S.G. § 2K2.1(b)(5); see Norris, 319 F.3d at 1284; United States v.

Hurlich, 293 F.3d 1223, 1227 (10th Cir. 2002). A “felony offense” “means any

offense (federal, state, or local) punishable by imprisonment for a term exceeding

one year, whether or not a criminal charge was brought, or conviction obtained.”

U.S.S.G. § 2K2.1(b)(5), cmt. n.7.

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 The district court determined that Mr. Mozee possessed the firearm in

connection with the Wyoming felony of aggravated assault. Mr. Mozee contends

the district court failed to apply the correct legal definition of “aggravated

assault” as defined by Wyoming law. Specifically, he claims the court

misunderstood the “intent” or mens rea element of aggravated assault. We review

a district court’s legal determinations de novo. United States v. Norris, 319 F.3d

1278, 1283-84 (10th Cir. 2003).

Under Wyoming law, a person is guilty of aggravated assault and battery if

he or she:

(i) Causes serious bodily injury to another intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference
to the value of human life;
(ii) Attempts to cause, or intentionally or knowingly causes bodily
injury to another with a deadly weapon;
(iii) Threatens to use a drawn deadly weapon on another unless
reasonably necessary in defense of his [or her] person, property or
abode or to prevent serious bodily injury to another; or
(iv) Intentionally, knowingly or recklessly causes bodily injury to a
woman whom he [or she] knows is pregnant.

W YO . S TAT . A NN . § 6-2-502(a). To be convicted under this statute, Mr. Mozee

must have volitionally pulled the trigger that led to Ms. Ferguson’s injury. See,

e.g., Cox v. State, 829 P.2d 1183, 1185-86 (Wyo. 1992) (holding that W YO . S TAT .

A NN . § 6-2-502(a)(iii) defines a general intent crime, which simply describes a

particular act and requires only that intent that may be inferred from doing the act

constituting the offense charged). The defense concedes this point. Aplt. Rep.

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Br. at 6 (“at a minimum, any version of aggravated assault at least requires

general intent”).

The district court, referring to the mens rea element of aggravated assault

in Wyoming, stated during the sentencing hearing:

There is no intent beyond the intent to do the act for an aggravated
assault or assault with a deadly or dangerous weapon, for that matter.
The circumstance is an unlawful touching or threat to perform an
unlawful touching by someone who is acting knowingly, knowing
what they’re doing. Here it is contended in the report that the contact
– the conduct of the defendant is comparable to an aggravated
assault.

Rec., vol. IV at 37. The court determined Mr. Mozee shot Ms. Ferguson

intentionally, not accidentally, and unambiguously concluded: “the circumstances

here do reflect an aggravated assault.” Id. at 41. An “intentional” shooting is

without doubt volitional and knowing. 1

In response to the holding in Cox, Mr. Mozee argues that W YO . S TAT . A NN .

1
Mr. Mozee cites O’Brien v. State, 45 P.3d 225 (Wyo. 2002) and Garcia v.
State, 777 P.2d 1091 (Wyo. 1989), to support his position that W YO . S TAT . A NN .
§§ 6-2-502(a)(i) and (ii) apply to the facts of his case and require specific proof
of mens rea. Even if this were true, while “the bare fact of assaultive behavior
will not give rise to a presumption that an assailant had the specific intent to
cause any particular harm,” “the specifics of a defendant’s conduct and other
circumstantial evidence may permit the jury to infer that he acted with the
specific intent to cause bodily injury.” Garcia, 777 P.2d at 1095. As stated
above, the district court explicitly found that Mr. Mozee intentionally fired the
weapon which resulted in Ms. Ferguson’s wounds. That finding is sufficient to
satisfy the Wyoming statute. The intentional shooting of a loaded .380 handgun
into a victim’s back during a heated argument clearly could give rise to a
reasonable inference that the shooter acted with the specific intent to cause his
victim bodily injury.

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§ 6-2-502(a)(iii) does not apply to him because there was no suggestion he had

threatened to use a drawn weapon against Ms. Ferguson. We are not persuaded.

The language, “[t]hreatens to use,” merely describes what a defendant must do

with a weapon to be guilty of aggravated assault. See Johnston v. State, 747 P.2d

1132, 1134 (Wyo. 1987) (“threatens to use” requires an actual threat of physical

injury during the act of employing a deadly weapon). As a general intent crime,

aggravated assault allows the element of intent to be inferred from doing the act

constituting the offense charged, such as pointing a loaded gun at a victim. See

Streitmatter v. State, 981 P.2d 921, 924 (Wyo. 1999) (slashing back and forth

with a hunting knife constitutes an actual threat of physical injury). Accordingly,

we find no fault in the district court’s determination that Mr. Mozee’s actions, if

not accidental, satisfied Wyoming’s definition of aggravated assault.

III

Mr. Mozee next contends the district court erred in determining there was

sufficient evidence to support a finding he intentionally shot Ms. Ferguson.

When evaluating sentence enhancements under the Sentencing Guidelines, we

review the district court’s factual findings for clear error and questions of law de

novo. Norris, 319 F.3d at 1283-84. We will not disturb a factual finding unless it

has no basis in the record. United States v. Martin, 163 F.3d 1212, 1217 (10th

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Cir. 1998). Moreover, in reviewing the court’s decision to apply an enhancement,

we view the evidence and inferences therefrom in the light most favorable to the

district court’s determination. United States v. Brown, 314 F.3d 1216, 1222 (10th

Cir. 2003).

The district court’s finding that Mr. Mozee intentionally shot Ms. Ferguson,

which qualified him for the § 2K2.1(b)(5) enhancement, is supported by the

following evidence. First, it was uncontested at the sentencing hearing that Ms.

Ferguson received serious bodily injury as the result of the discharge of a deadly

firearm wielded by Mr. Mozee. It was also uncontroverted that, subsequent to the

shooting, Mr. Mozee called a friend who lived 70 miles away to assist in the

situation rather than calling an ambulance or taking Ms. Ferguson to the hospital

where she could receive treatment for her wounds. Mr. Mozee himself admitted

that he simply left Ms. Ferguson bleeding on the couch from her untreated

wounds while Ms. Hoffman made the trek from Loveland, Colorado to Cheyenne,

Wyoming. The district court emphasized this fact in its sentencing colloquy and

noted this was “bizarre conduct” in such a situation. Rec., vol. IV at 39.

The court also specifically referred to the various versions of the incident

provided by Ms. Ferguson and Mr. Mozee to the CPD investigating officers.

According to Detective Weese’s testimony, Ms. Ferguson first reported that she

was wounded by a rock thrown from a passing car. She later recanted this version

of events and explained that she was the victim of a drive-by shooting. Mr.

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Mozee also provided a drive-by shooting story to explain Ms. Ferguson’s wounds.

Detective Weese subsequently discovered that both Mr. Mozee and Ms. Ferguson

had completely fabricated this version of events. As implied by the district court,

the fact that both Mr. Mozee and Ms. Ferguson told the same lie strongly suggests

they had something to hide and that the shooting was something other than an

accident; otherwise, they both would have simply conveyed the accidental nature

of the incident to the investigating officers. Mr. Mozee’s constantly shifting

story, in particular, made his credibility questionable.

Detective Weese admitted on cross-examination that through a series of

contortions, dance steps, twirling, and hammerlock moves choreographed and

suggested by defense counsel, it was possible that when the gun was discharged,

it could have accidentally caused a wound similar to that sustained by Ms.

Ferguson. But neither Detective Weese nor the district court was convinced this

scenario was likely. First, neither Mr. Mozee nor Ms. Ferguson provided a

description of events that even remotely mirrored the series of moves suggested

by defense counsel. According to Mr. Mozee, during a heated argument, as he

was in the process of placing the gun in the waistband of his pants, Ms. Ferguson

grabbed his arm and pulled it, causing the muzzle of the weapon to sweep across

her body and at some point pass over her back side. Thus, as Mr. Mozee detailed

the altercation, Ms. Ferguson would likely have been standing upright and on her

feet at the time the gun discharged, a fact which would make the downward

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trajectory of the bullet difficult to explain. The district court also noted that “Ms.

Ferguson said nothing in her reports to the police officer about grabbing the

firearm or about this dance. There was no reason for her not to have done so

except she didn’t know the story that was told.” Id. at 41. In sum, there was no

evidence whatsoever that the hypothetical version offered by defense counsel took

place; in fact, the actual evidence before the court conflicted with the defense’s

account of the shooting as accidental.

Ultimately, the court agreed with Detective Weese: it was “likely, more

likely” “the weapon was discharged and [Ms. Ferguson] was in a crouching

position perhaps moving to the door or starting to move towards the door.” Id. at

40. The court noted the absence of “stippling” or “tattooing” around Ms.

Ferguson’s wounds, the presence of which would have corroborated Mr. Mozee’s

story. The court also determined Mr. Mozee’s statement that Ms. Ferguson had

been shot because “she was fucking with [him],” id. at 27, “certainly illustrates a

frame of mind and an acceptance, almost a recognition of fault or responsibility

on the part of the defendant that [Ms. Ferguson] deserved what she got.” Id. at

40.

The district court made credibility determinations, parsed the detailed

evidence, and rejected Mr. Mozee’s accidental discharge theory as unsupported by

the record and “inexplicable.” Id. at 41. The court decided a preponderance of

the evidence supported the conclusion that Mr. Mozee’s shooting of Ms. Ferguson

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was intentional and the product of domestic violence. Id. Based on this finding,

the court ruled Mr. Mozee possessed the firearm in connection with the

commission of an aggravated assault, thus justifying a four-level enhancement

pursuant to § 2K2.1(b)(5). Given the record here, we simply cannot hold the

district court’s finding that Mr. Mozee intentionally shot Ms. Ferguson was based

on insufficient evidence.

IV

Mr. Mozee contends the district court violated his Sixth Amendment right

to a jury trial by imposing a sentence exceeding the maximum authorized solely

by his plea and prior convictions. See United States v. Booker, 125 S. Ct. 738,

756 (2005); Blakely, 124 S. Ct. at 2536 (2004). Citing Blakely and Apprendi v.

New Jersey, 530 U.S. 466 (2000), he specifically maintains his sentence could

only be enhanced pursuant to § 2K2.1(b)(5) if either a jury had found or he had

admitted that he used the firearm in connection with another felony offense.

In Blakely, 124 S. Ct. at 2536, the Supreme Court applied the rule it

expressed in Apprendi to Washington state’s determinate sentencing regime.

Recently, the Court extended Apprendi and Blakely to the Federal Sentencing

Guidelines, holding that the Sixth Amendment requires that “[a]ny 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

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must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Booker, 125 S. Ct. at 756. To remedy the guidelines’ Sixth Amendment

problem, the Court severed and excised 18 U.S.C. § 3553(b)(1), which required

sentencing courts to impose a sentence within the applicable guidelines range,

subject to departures in limited cases. Id. at 764. As a result, the guidelines are

now advisory in all cases. Id. at 757. In addition, the Court expressly stated that

its “interpretation of the Sentencing Act” should be applied “to all cases on direct

review.” Id. at 769. We must therefore evaluate Mr. Mozee’s sentence in light of

the Court’s holding in Booker.

Mr. Mozee pled guilty to a charge of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on an

undisputed criminal history category of V and total offense level of 21, 2 a

guidelines range of 70 to 87 months was the maximum penalty Mr. Mozee could

have been given based solely on the facts he admitted plus his prior convictions.

See U.S.S.G. ch. 5 pt. A (Sentencing Table). At sentencing, however, and as

discussed above, the district court enhanced Mr. Mozee’s guidelines range by four

offense levels pursuant to a finding that he possessed the firearm in connection

2
Mr. Mozee received an initial base offense level of 24 for unlawful
possession of firearm after at least two felony convictions for crime of violence or
controlled substance offense. See U.S.S.G. § 2K2.1(a)(2). The total offense level
of 21 incorporates a three-level downward adjustment Mr. Mozee received for
acceptance of responsibility.

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with the commission of another felony offense. As a result, Mr. Mozee’s total

offense level was calculated at 25, mandating a guidelines range of 100 to 120

months incarceration. Id. 3 Mr. Mozee argues that because the maximum penalty

he could receive solely on the basis of his admissions was 87 months, the 120

month sentence imposed by the district court violates the Sixth Amendment.

Because Mr. Mozee did not raise his Sixth Amendment argument in the

district court, we review his claim for plain error. F ED . R. C RIM . P. 52(b); see

also United States v. Dazey, No. 03-6187, 2005 WL 846227, at *19 (10th Cir.

Apr. 13, 2005). To establish plain error, Mr. Mozee must demonstrate there was

(1) error (2) that is plain and (3) affected his substantial rights. United States v.

Cotton, 535 U.S. 625, 631 (2002); United States v. Gonzalez-Huerta, No.

04-2045, 2005 WL 807008, at *3 (10th Cir. Apr. 8, 2005) (en banc). If Mr.

Mozee satisfies his burden of establishing the first three prongs of the plain error

test, we may exercise our discretion to correct the error if it “seriously affect[ed]

the fairness, integrity or public reputation of judicial proceedings.” Johnson v.

United States, 520 U.S. 461, 469-70 (1997) (quoting United States v. Olano, 507

Based on a total offense level of 25 and a criminal history category of V,
3

Mr. Mozee’s guidelines imprisonment range was actually 100 to 125 months.
U.S.S.G. Ch. 5 Pt. A. Because the statutory maximum sentence was 10 years (120
months), see 18 U.S.C. § 924(a)(2), however, the statutory maximum of 120
months became the guidelines range maximum pursuant to U.S.S.G. §
5G1.1(c)(1). As a result, Mr. Mozee’s guidelines sentencing range was 100 to
120 months.

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U.S. 725, 736 (1993)); Gonzalez-Huerta, 2005 WL 807008, at *3.

There is little doubt Mr. Mozee has satisfied the first three prongs of the

plain error analysis. The district court committed constitutional error when it

found that Mr. Mozee had used a firearm in connection with another felony

offense and applied a mandatory four-level enhancement to his sentence. Booker,

125 S. Ct. at 749 (“Since this fact was found by a judge using a preponderance of

the evidence standard, the sentence violated [the defendant’s] Sixth Amendment

rights.”); Blakely, 124 S. Ct. at 2537. Moreover, the error is now “plain” or

“obvious.” Johnson, 520 U.S. at 468 (“where the law at the time of trial [or

sentencing] was settled and clearly contrary to the law at the time of appeal – it is

enough that an error be ‘plain’ at the time of appellate consideration”).

In order to demonstrate that an error affected his substantial rights, “a

defendant must show a ‘reasonable probability’ that the defects in his sentencing

altered the result of the proceedings.” Dazey, 2005 WL 846227, at *20 (citing

United States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004)). We have

held in the context of reviewing a constitutional Booker error that a defendant

may meet this burden in at least two ways:

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 . . . . Second, a defendant may show
that the district court’s error affected his substantial rights by

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 demonstrating a reasonable probability that . . . the district court
judge would reasonably impose a sentence outside the Guidelines
range.

Id., slip op. at 49-50. Mr. Mozee contends there was insufficient evidence for a

jury to find beyond a reasonable doubt the sentencing-enhancing fact that the

district court found by a preponderance of the evidence.

As detailed in part III of our analysis, the inculpatory evidence presented

by the government at Mr. Mozee’s sentencing was sufficient under a

preponderance of the evidence standard to establish that he possessed a firearm in

connection with the commission of an aggravated assault. But the government

concedes the evidence in support of that finding “was in no sense either

overwhelming or uncontradicted.” Aple. Supp. Br. at 4. In fact, Mr. Mozee

vigorously contested the government’s assertion that he intentionally shot Ms.

Ferguson. On this record, we conclude there is a reasonable probability a jury

evaluating the evidence presented at Mr. Mozee’s sentencing would not have

found beyond a reasonable doubt that he possessed the firearm in connection with

the commission of an aggravated assault. Mr. Mozee has thus satisfied his burden

to show that the four-level enhancement imposed by the district court affected his

substantial rights.

The closer question is whether we should exercise our discretion to correct

the error. Mr. Mozee has the burden of persuading us that the error seriously

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affected the fairness, integrity, or public reputation of judicial proceedings.

United States v. Vonn, 535 U.S. 55, 63 (2002). When the district court commits a

constitutional error and the defendant has proven that the error affected his or her

substantial rights, we would normally exercise our discretion to correct the error.

See Gonzalez-Huerta, 2005 WL 807008, at *14 (Hartz, J., concurring). This is so

because a reversal usually directly cures the constitutional infirmity and, as a

result, the failure to notice and correct the constitutional error would impugn the

fairness, integrity, or public reputation of judicial proceedings. Id.

Constitutional Booker error, however, is unique because the remedy for such an

error is not a direct cure. That is, the remedy is not to set aside the

unconstitutional judicial finding and remand for a retrial at which the jury would

have to find all facts needed to determine the offense level. Rather, the remedy –

a remand for resentencing under a discretionary guidelines regime – only cures

the error indirectly. Id. Thus, in the instant case, the question before us is

whether a reversal and remand for resentencing by the district court under a

discretionary guidelines regime would advance the fairness, integrity, or public

reputation of the courts. We conclude it would not.

After the district court determined Mr. Mozee’s applicable guidelines range

was 100 to 120 months imprisonment, it opted to sentence Mr. Mozee to a

120-month term. In other words, the court exercised its discretion and in doing so

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sentenced Mr. Mozee to serve the maximum term of imprisonment it could

lawfully impose. As a result, any argument that the court might have sentenced

Mr. Mozee to 87 months or less had it understood it had discretion to do so is

simply unpersuasive. Because the court decided to maximize punishment rather

than exercise leniency where it had discretion, there is no basis for us to assume

Mr. Mozee would receive a lesser sentence if he were resentenced under a

discretionary sentencing regime in which the district court is required to

“consider” the guidelines when it exercises its discretion. See Booker, 125 S. Ct.

at 764. Under these circumstances, Mr. Mozee has failed to persuade us that the

Sixth Amendment error here seriously affects the fairness, integrity, or public

reputation of judicial proceedings. We therefore decline to exercise our

discretion to correct the forfeited error.

For the foregoing reasons, we AFFIRM.

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No. 04-8015, United States v. Mozee

MURPHY, Circuit Judge, concurring.

I join sections I, II, and III of the majority opinion. I also join in the result

and in section IV except to the extent that it holds Mozee has satisfied the third

prong of the plain-error test. I would not reach that relatively difficult question

because, for the reasons given in the majority opinion, Mozee cannot in any event

meet his burden of demonstrating that the district court’s error seriously affected

the fairness, integrity, or public reputation of judicial proceedings. See United

States v. Cotton, 535 U.S. 625, 632-33 (2002) (“[W]e need not resolve . . . [the

third prong of plain-error review], because even assuming respondents’

substantial rights were affected, the error did not seriously affect the fairness,

integrity, or public reputation of judicial proceedings.”); Johnson v. United States,

520 U.S. 461, 469-70 (1997); United States v. Gonzalez-Huerta, No. 04-2045, ---

F.3d ----, 2005 WL 807008, at *6 (10th Cir. Apr. 8, 2005) (en banc).