F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 1, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-5150
v.
PAUL FREDERICK GLOVER, JR.,
Defendant - Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
D.C. No. 03-CR-182-H)
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. *
William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.
David E. O’Melia, United States Attorney and Kevin Danielson, Assistant United
States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
KELLY, Circuit Judge.
*
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); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant-Appellant Paul Frederick Glover, Jr. pled guilty to conspiracy to
manufacture and distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §
846. He was sentenced to 252 months incarceration to be followed by five years
of supervised release. On appeal, he contends that his sentence was improperly
increased based upon facts which were not charged in the indictment. Our
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
Background
Mr. Glover was indicted in a nine-count indictment for various offenses in
connection with the manufacture and distribution of methamphetamine. On April
30, 2004, he pled guilty to a conspiracy count pursuant to a plea agreement. Aplt.
App. 2 at 4. At the change of plea hearing, Mr. Glover objected to various
paragraphs in the overt acts section of the conspiracy count as lacking a factual
basis. By agreement of the parties, various paragraphs were deleted. Id. at 18-21.
As part of the factual basis, the plea agreement contained a paragraph of admitted
facts. Aplt. App. 3 at 7-8. It included facts relevant to a two-level increase in the
offense level for possession of a firearm during the offense, U.S.S.G. §
2D1.1(b)(1), and a four-level enhancement based on defendant’s role in the
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offense, U.S.S.G. § 3B1.1(a), contained in the pre-sentence report (PSR). III R.
at 14-15. In the plea agreement, Mr. Glover admitted that he “sold a lot of the
finished methamphetamine for cash or traded it for other assets such as firearms,
automobile parts, or electronic equipment,” and that “[s]ome people also brought
to me or obtained for me at my request material or equipment that I would use in
the process of making methamphetamine.” Aplt. App. 3 at 7-8.
In written objections and at the sentencing hearing, Mr. Glover objected to
the enhancements, 1 both on factual grounds and based on Blakely v. Washington,
542 U.S. __, 124 S. Ct. 2531 (2004). III R. PSR Addendum at 1, 11; Aplt. App. 5
at 5-12. In his objections to the PSR, he admitted that he possessed firearms in
the course of his methamphetamine distribution activities, including as a medium
of exchange. III R. PSR Addendum at 11. He also indicated that he would not
object to a two-level upward adjustment “pre-Blakely” for his role in the offense,
maintaining that he was assisted only by three persons, not the requisite five or
more necessary for a four-level adjustment. At the sentencing hearing, Mr.
Glover then stipulated to a two-level increase in the offense level for possessing
firearms and compromised with the government for a two-level enhancement for
1
The increase in the offense level for possession of a firearm during the
offense, U.S.S.G. § 2D1.1(b)(1), and the role in the offense upward adjustment,
U.S.S.G. § 3B1.1(a), will be referred to together as “enhancements.”
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being a leader or organizer. 2 Aplt. App. 5 at 5-12. Mr. Glover made various
objections to paragraphs in the PSR relating to drug quantities. Id. at 13. The
district court then sentenced Mr. Glover to 252 months imprisonment, the upper
part of the 210 to 262 months guideline range.
Discussion
At the sentencing hearing, Mr. Glover argued that the factual basis for the
enhancements was not included in the amended indictment and that his statements
in the plea agreement were not sufficient admissions to justify the enhancements.
Aplt. App. 5 at 4-5, 10. On appeal, he argues that the term of his sentence should
not have been increased based on facts that were not alleged in the indictment
under Apprendi v. New Jersey, 530 U.S. 466 (2000) and United States v. Booker,
__ U.S. __, 125 S. Ct. 738 (2005). Aplt. Br. 7-8. We find no merit in this
argument.
In regard to sentencing, a defendant may waive his Sixth Amendment rights
under Apprendi and Blakely by stipulating to facts underlying sentence
enhancements. Blakely, 124 S. Ct. at 2541; United States v. Porter, 405 F.3d
2
The parties stipulated to a base offense level of thirty-two. Aplt. App. 5 at
3. The district court accepted the PSR’s suggestion of a three-level downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a), leaving an
offense level of twenty-nine before the four-level increase—two levels for
leadership role and two levels for possession of a firearm. Aplt. App. 5 at 12.
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1136, 1143 (10th Cir. 2005) (holding that a defendant admitting facts upon which
the court determined the sentence does not violate the Sixth Amendment under
Apprendi or Booker). Mr. Glover admitted in the plea agreement that he traded
finished methamphetamine for other assets, including firearms. He argues that
this statement does not furnish a nexus between the firearms and the conspiracy
offense, so he cannot be deemed to have admitted the facts necessary for a
U.S.S.G. § 2D1.1(B) enhancement. This argument is thin—trading drugs for guns
does provide the requisite nexus. United States v. Rogers. 150 F.3d 851, 858 (8th
Cir. 1998).
Mr. Glover also admitted facts supporting the firearms enhancement in
connection with his sentencing. In his objections to the PSR, he admitted that he
provided firearms that had been exchanged for methamphetamine to another
person regularly. III R. PSR Addendum at 11. Were that not enough, at the
sentencing hearing, Mr. Glover’s counsel, in response to the court’s inquiry of
whether the firearm enhancement was appropriate, commendably admitted that
“it’s fairly seamless in light of the statement that’s made in the plea agreement.”
Aplt. App. 5 at 5-6. Counsel did preserve his argument that such facts needed to
be alleged in the indictment, though. With that issue preserved, counsel
stipulated that the facts had been established for the enhancement. Thus, given
that the facts were admitted by Mr. Glover and are sufficient to warrant the
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enhancement under the law, Mr. Glover has no Blakely claim on the firearms
offense characteristic.
Turning to the role-in-the-offense adjustment, we need not decide if Mr.
Glover’s statement in the plea agreement (that “some people” at his request
furnished him material or equipment to make methamphetamine), is a sufficient
admission to support a four-level enhancement for being an organizer or leader of
five or more participants. In response to the PSR, Mr. Glover objected to a four-
level, but not to a two-level, upward adjustment, “pre-Blakely.” III R. PSR
Addendum at 11. Mr. Glover maintained that no more than three persons assisted
him on a regular basis in drug distribution. Plainly, this is a sufficient admission
by Mr. Glover to warrant an additional two-level U.S.S.G. §3B1.1(c)
enhancement. United States v. McKneely, 69 F.3d 1067, 1079 (10th Cir. 1995).
Further, were there any doubt about Mr. Glover’s admission, at the sentencing
hearing Mr. Glover’s counsel stipulated to the two-level adjustment, while
preserving his argument that the facts had to be alleged in the indictment. Aplt.
App. 5 at 12. As before, we conclude that Mr. Glover’s admissions to the
requisite facts supporting a two-level role-in-the-offense adjustment eliminate any
Blakely claim.
Booker does not alter this conclusion. In Booker, the Court “reaffirm[ed
its] holding in Apprendi: Any fact (other than a prior conviction) which is
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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.
However, the Court did not hold that facts supporting sentencing factors had to be
included in the indictment. Indeed, Justice Breyer, in the Court’s remedial
opinion, discussed the difficulty such a requirement would cause. Id. at 761.
Specifically, Justice Breyer commented on the difficulty courts and counsel would
have in a jury trial with an indictment alleging “whether the defendant possessed
a firearm, . . . whether he was an organizer, [or] leader” and other facts which are
not necessary elements of the crime. Id. at 761-62; see U.S.S.G. §§ 2B3.1
(robbery), 3B1.1 (role in the offense). Defendants would have difficulty raising
defenses against both the alleged crime and the enhancements, and juries might be
confused given the complexity of the sentencing guidelines. Id. at 762.
Therefore, the Court concluded that applying the Sixth Amendment requirement
to the sentencing enhancements under the Guidelines “would create a system far
more complex than Congress could have intended.” Id. at 761.
The Fourth Circuit recently rejected a similar challenge in the guilty plea
context—that upward adjustments and departures under the Guidelines must be
alleged in the indictment and found by a jury beyond a reasonable doubt—stating:
A plea of guilty submits the defendant to fact finding by the
judge, rather than the jury. . . . For over 200 years, the trial courts
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have had jurisdiction to fix sentences, except in peculiar
circumstances such as the present death penalty statute. Certainly
this includes the authority for the judge to find facts unless otherwise
prohibited. Booker has not changed that.
. . . The district court did not err in its fact finding because the facts
were based on the defendant’s own admissions. Therefore, we are of
opinion and hold the defendant’s argument under Blakely to be without
merit.
United States v. Bartram, __ F.3d __, 2005 WL 994828, at *6 (4th Cir. Apr. 29,
2005).
Although there is no Sixth Amendment violation here, there is a non-
constitutional Booker error because the district court treated the guidelines as
mandatory, rather than advisory. See United States v. Gonzalez-Huerta, 403 F.3d
727, 731-32 (10th Cir. 2005) (discussing the difference between constitutional
and non-constitutional Booker error). In Booker, the Court remedied the
constitutional violation of the Sentencing Guidelines by invalidating their
mandatory application and instead requiring courts to apply them in an advisory
manner. 125 S. Ct. at 756-57 (excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). Had
the district court treated the Guidelines as advisory, we would review the sentence
for reasonableness with regard to § 3553(a). See Id. at 765-66.
Assuming that Mr. Glover’s Apprendi objection also preserved his non-
constitutional Booker argument given the unsettled state of the law, 3 we review
See Gonzalez-Huerta, 403 F.3d at 750 n.3 (Briscoe, J., dissenting)
3
(observing that in United States v. Labastida-Segura, 396 F.3d 1140, 1142-43
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whether the district court’s non-constitutional error was harmless as the
government urges. See United States v. Riccardi, 405 F.3d 852, 874-75 (10th Cir.
2005) (applying harmless error analysis to a preserved constitutional Booker
error); United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir.
2005) (applying harmless error analysis to a preserved non-constitutional Booker
error). Fed. R. Crim. P. 52(a) provides that “[a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.” Considering
a misapplication of the Guidelines under 18 U.S.C. 3742(f)(1), the Supreme Court
held that “once the court of appeals has decided that the district court misapplied
the Guidelines, a remand is appropriate unless the reviewing court concludes, on
the record as a whole, that the error was harmless, i.e., that the error did not
affect the district court's selection of the sentence imposed.” Williams v. United
States, 503 U.S. 193, 203 (1992) (citing Fed.R.Crim.P. 52(a)); see also Labastida-
Segura, 396 F.3d at 1142-43. In non-constitutional harmless error cases, the
government bears the burden of demonstrating, by a preponderance of the
evidence, that the substantial rights of the defendant were not affected. See
Williams, 503 U.S. at 203.
The government relies heavily on the fact that the district court consulted
(10th Cir. 2005), a defendant’s constitutional objection after Blakely was
sufficient to preserve a non-constitutional Booker error given the difficulty of
predicting the remedy that was adopted the Supreme Court in Booker).
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the Guidelines and that Mr. Glover stipulated to key facts concerning his
sentence. More to the point, all indicators suggest that any sentence on remand
would be the same. Mr. Glover marshaled facts and argument during allocution
to persuade the court to give a sentence at the low end of the range. Cf.
Gonzalez-Huerta, 403 F.3d at 735-36 (noting that pre-Booker, defendants had
every reason to present mitigating circumstances to a district court eliminating the
need to remand so the court may consider additional circumstances). Still, the
district court exercised its discretion to sentence Mr. Glover near the top of the
applicable Guideline range. Compare Riccardi, 405 F.3d at 876 (holding that a
constitutional Booker error was harmless where the district court sentenced at the
top of the range), with Labastida-Segura, 396 F.3d at 1143 (holding that a non-
constitutional Booker error was not harmless where the district court sentenced at
the bottom of the range). The district court based the enhancements on Mr.
Glover’s actual and admitted conduct. This approach was followed in Riccardi,
405 F.3d at 876, and is supported by Booker. 125 S. Ct. at 757 (adopting an
approach that “maintain[s] a strong connection between the sentence imposed and
the offender’s real conduct”).
Finally, the court remarked at sentencing that a sentence at the higher end
of the guideline range was justified in light of Mr. Glover’s criminal history and
the threat he poses to the community. Aplt. App. 5 at 33. These remarks suggest
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that the court believed that the sentence was appropriate considering the
circumstances. Therefore, although the district court erred in mandatorily
applying the Guidelines, we are satisfied that the error was harmless and must be
disregarded.
AFFIRMED.
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