F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 24, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-1164
v. (D.C. No. 99-CR-383-N)
(Colorado)
GEOFFREY CHRIS CLEMENT,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Geoffrey C. Clement was convicted by a jury of sixteen counts of wire and
interstate fraud in violation of 18 U.S.C. §§ 1341, 1343; thirteen counts of money
laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A), 1957; and aiding and
abetting the same in violation of 18 U.S.C. § 2. The presentence report (PSR)
grouped the wire fraud and money laundering counts together and calculated
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
offense levels for each group. With respect to the fraud convictions, the PSR
calculated Mr. Clement’s base level at six and then recommended (1) a fourteen-
level increase for an amount of loss more than $5,000,000 but less than
$10,000,000; (2) a two-level increase because the offenses involved more than
minimal planning; (3) a four-level increase for affecting a financial institution;
and (4) a two-level increase for being an organizer, leader, manager, or
supervisor, resulting in a total offense level of twenty-eight. With respect to the
money laundering convictions, the PSR calculated Mr. Clement’s base offense
level at twenty-three and then recommended (1) a five-level increase for a value
of funds involved in an international money laundering scheme of more than
$1,000,000 but less than $2,000,000 and (2) a two-level increase for being an
organizer, leader, manager, or supervisor, resulting in a total offense level of
thirty. Applying U.S.S.G. § 3D1.4, the PSR adjusted Mr. Clement’s two offense
levels to a combined total offense level of thirty-two, which, when coupled with
his criminal history category of II, yielded an applicable guidelines range of 135
to 168 months imprisonment.
The district court adopted the recommendations of the PSR and sentenced
Mr. Clement in the middle of the guidelines range to 156 months imprisonment on
the international money laundering convictions. The court sentenced him to the
statutory maximums on his wire fraud and domestic money laundering
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convictions, five and ten years, respectively, to be served concurrently with his
156-month term on his international money laundering convictions. Mr. Clement
appeals, claiming the district court violated his Sixth Amendment right to a jury
trial by imposing a sentence exceeding the maximum authorized solely by the
jury’s verdict. See United States v. Booker, 125 S. Ct. 738, 756 (2005). We
affirm.
In Booker, the Court held 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 must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Id. To remedy the guidelines’ Sixth Amendment problem, the Court
severed and excised 18 U.S.C. § 3553(b)(1), which had required sentencing courts
to impose a sentence within the applicable guidelines range, subject to departures
in limited cases. Id. at 756-57. 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” must be applied “to all cases on direct review.” Id. at 769.
Thus, Mr. Clement’s sentence must be evaluated in light of the Court’s holding in
Booker.
Because Mr. Clement 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
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also United States v. Dazey, 403 F.3d 1147, 1173-74 (10th Cir. 2005). To
establish plain error, Mr. Clement must demonstrate that there was (1) error (2)
that was plain and (3) that affected his substantial rights. United States v. Cotton,
535 U.S. 625, 631 (2002); United States v. Gonzalez-Huerta, 403 F.3d 727, 732
(10th Cir. 2005) (en banc). If Mr. Clement 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 U.S. 725, 736 (1993)); Gonzalez-Huerta,
403 F.3d at 732.
There is little doubt Mr. Clement can satisfy the first two prongs of the
plain error analysis. First, the district court committed constitutional error when
it applied mandatory enhancements to Mr. Clement’s sentence as a result of
findings concerning: (1) the intended loss amount, (2) Mr. Clement’s role in the
offenses, (3) the effect of the offenses on a financial institution, and (4) the
amount of planning necessary to commit the offenses. 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.”).
Second, 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
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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, 403 F.3d at 1175 (citing United
States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004)). We have held that,
in the context of reviewing a constitutional Booker error, a defendant may meet
this burden in 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 demonstrating a reasonable probability
that . . . the district court judge would reasonably impose a sentence outside
the Guidelines range.
Id. It does not appear that, on appeal, Mr. Clement either contends that 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 or
that the district court would impose a sentence outside the guidelines range on
remand. 1 We need not decide whether Mr. Clement satisfies the third prong of
1
Mr. Clement did not contest the enhancements he received for more than
minimal planning or for affecting a financial institution on any basis. Moreover,
he challenged the amount of intended loss only to the extent that he claimed the
amount was not converted properly from Australian to United States dollars – an
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the plain error analysis, however, “because even assuming [his] substantial rights
were affected, the error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Cotton, 535 U.S. at 632-33; Johnson, 520
U.S. at 469-70; Gonzalez-Huerta, 403 F.3d at 736 (“We need not determine
whether [the defendant] can satisfy this burden because even if he were to meet
the third prong, he must also satisfy the fourth prong to obtain relief.”).
Mr. Clement has the burden of persuading the court that the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings.
United States v. Vonn, 535 U.S. 55, 63 (2002). After the district court determined
the applicable guidelines range was 135 to 168 months imprisonment, it opted to
sentence Mr. Clement to a 156-month term, stating:
If you’re not sick, I would sentence you to the maximum term, because I
think you’re incorrigible. I think that you’re incorrigible primarily because
you don’t accept any responsibility. The first step in rehabilitation is
acceptance of responsibility, and you shift responsibility to everybody
except yourself. And for that reason, I don’t think that you can be
rehabilitated. I think that you will always be a fraud and a charlatan . . .
my prediction is that if you got out, you would do it again, if you were
physically able to do so. However, since you are ill, the compromise I
reach is that I’ll impose a sentence somewhere in the middle of the
guideline range.
Rec., vol. XXXI at 30. In other words, the court calculated Mr. Clement’s
argument that ultimately proved to be incorrect. While Mr. Clement did object to
the aggravating role offense enhancement recommended by the presentence report
on the basis that his co-defendant, Mr. Wilhite, acted alone and “was never
directed by” him, he has abandoned that argument on appeal.
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guidelines range, exercised its discretion, and sentenced Mr. Clement more or less
in the middle of the applicable range. As a result, any argument that the district
court might have sentenced Mr. Clement to a lower term of imprisonment had it
understood it had discretion to do so is simply unpersuasive. Because the court
decided to increase punishment rather than exercise leniency where it had
discretion, there is no basis for us to assume Mr. Clement would receive a lesser
sentence if he were resentenced under a discretionary guidelines regime in which
the district court is required to “consider” the guidelines when it exercises its
discretion. Booker, 125 S. Ct. at 764.
Under these circumstances, Mr. Clement has failed to meet his burden of
persuading us that the Sixth Amendment error 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.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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