F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 5, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-3395
v. (D. of Kan.)
IMRE FUREDI, (D.C. No. 04-CR-20008-01-GTV)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Defendant-Appellant Imre Furedi appeals from the sentence imposed
following his guilty plea to one count of possession of child pornography under
18 U.S.C. § 2252(a)(4)(B). We remand for resentencing in light of United States
v. Booker , 125 S. Ct. 738 (2005).
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
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 cause is therefore ordered submitted without oral argument.
Based solely on the guilty plea, the sentencing range for Furedi’s offense
would have been 18 to 24 months. 1
Following a series of enhancements based on
judge-found facts, the presentence report (PSR) set the sentencing range at 70 to
87 months. 2
However, the district court sentenced Furedi below the guideline
range, at 60 months, because that is the statutory maximum term of imprisonment
for this offense. 18 U.S.C. § 2252(a)(4)(B).
Before sentencing, Furedi filed written objections to the PSR challenging
the constitutionality of the United States Sentencing Guidelines based on Blakely
v. Washington , 542 U.S. 296 (2004). He renewed those objections at sentencing,
arguing that the sentence enhancements violated the Sixth Amendment because
they were based on judge-found facts that had not been admitted or proved to a
jury beyond a reasonable doubt. See Blakely , 542 U.S. 296, 124 S. Ct. at
2537–38. We now know, following Booker , that Furedi was correct. See Booker ,
1
Violation of 18 U.S.C. § 2252(a)(4) sets the base offense level at 15. See
USSG § 2G2.4 (2003). Combined with Criminal History Category I, the
applicable range was 18 to 24 months. Id. at Ch. 5, pt. A, Sentencing Table.
2
The sentencing enhancements included the following: a two-point
enhancement because the material involved a prepubescent minor, USSG
§ 2G2.4(b)(1); a two-point enhancement because the offense involved more than
ten visual depictions involving the sexual exploitation of a minor, id. at
§ 2G2.4(b)(2); a two-point enhancement because the possession resulted from
Furedi’s computer, id. at § 2G2.4(b)(3); a four-point enhancement because the
material portrayed sadistic conduct, id. at § 2G2.4(b)(4); and a five-point
enhancement because the offense involved 600 or more images, id. at
§ 2G2.4(b)(5)(D). The district court then subtracted three points for acceptance
of responsibility, arriving at a total offense level of 27.
-2-
125 S. Ct. at 748–49. Thus, we must remand this case for resentencing unless the
error was harmless under Federal Rule of Criminal Procedure 52(a). See United
States v. Riccardi , 405 F.3d 852, 875–76 (10th Cir. 2005).
Rule 52(a) states that “[a]ny error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.” The burden of proving that an
error does not affect substantial rights is on the “beneficiary of the error,” which
in this case is the government. See Chapman v. California , 386 U.S. 18, 24
(1967). Where the error involves a constitutional violation—as it does here—the
government must prove the error was harmless beyond a reasonable doubt. Id.
Our task is made easy in this case by the government’s complete lack of argument
that the error was harmless. The government, in fact, citing our decision in
United States v. Labastida-Segura , 396 F.3d 1140 (10th Cir. 2005), concedes that
remand is appropriate. We agree. See United States v. Jardine, 406 F.3d 1261
(10th Cir. 2005) (remanding case for resentencing in light of government’s
concession of Booker error) ; United States v. Lang , 405 F.3d 1060, 1065 (10th
Cir. 2005) (remanding case for resentencing because “[t]he government has not
asserted that the [ Booker ] error in this case was harmless”); United States v.
Windrix , 405 F.3d 1146, 1158 (10th Cir. 2005) (to the same effect).
-3-
Therefore, we REMAND for resentencing.
Entered for the Court
Timothy M. Tymkovich
United States Circuit Judge
-4-