F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 8, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-6405
v. (D.C. No. 04-CR-136-L)
PATRICK LAFAYETTE STEWART, (W. D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Defendant was charged in a two-count indictment for possession of a
firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1) (Count I)
and for possession of crack cocaine in violation of 21 U.S.C. § 844 (Count II). In
*
This order and judgment is not binding precedent, except under the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.
a superseding indictment, prosecutors added Sentencing Guidelines enhancement
language, which alleged that Defendant possessed the firearm in connection with
a felony.
While running a routine license plate check on a maroon Chevrolet Malibu
on May 17, 2004, officers from the Oklahoma City Police Department received
information that the vehicle had been reported stolen. After learning this, the
officers attempted to pull the vehicle over. This effort was unsuccessful,
however, and a high speed chase ensued on Interstate 40 through the center of
Oklahoma City. During the chase, Defendant swerved wildly and lost control of
his vehicle, which became airborne and eventually crashed into a concrete median
on the interstate. Undeterred by the collision, Defendant leaped out of the
vehicle, threw his jacket over the side of the highway guardrail, and ran from
pursuing officers. Eventually, after using a taser gun, the officers apprehended
Defendant.
Officers also recovered the jacket Defendant discarded earlier in the chase.
In the jacket’s front pocket was a loaded .380 caliber, semi-automatic pistol and
two plastic bags containing cocaine base. After being charged, Defendant pled
guilty to Counts I and II of the superseding indictment.
At sentencing, the presentence report recommended that the district court
apply a sentencing enhancement under § 2K2.1(b)(5) of the United States
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Sentencing Guidelines Manual (Guidelines) because Defendant allegedly
possessed the firearm in connection with the felonious possession of crack
cocaine. Defendant objected to the district court’s application of § 2K2.1(b)(5) as
violating his Sixth Amendment rights as articulated in Blakely v. Washington, 542
U.S. 296 (2004). Rec., Vol. III, at 3-4. The district court overruled Defendant’s
objection. Id. at 4. Defendant was subsequently sentenced to seventy-nine
months’ incarceration.
On appeal, Defendant challenges his sentence as being imposed in violation
of his constitutional rights, as recently articulated by the Supreme Court in United
States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Specifically, Defendant claims
that the district court committed non-constitutional error when it applied the
Guidelines in a mandatory fashion at sentencing. Because Defendant made a
Blakely objection to the district court at sentencing, Defendant preserved his
Booker argument for this appeal. See United States v. Labastida-Segura, 396
F.3d 1140, 1142-43 (10th Cir. 2005) (noting that a Blakely objection is sufficient
to preserve a non-constitutional Booker error). Therefore, we will review for
harmless error. Id.
Federal Rule of Criminal Procedure 52(a) provides that “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights must be
disregarded.” The Supreme Court has directed courts of appeals to remand cases
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for re-sentencing when the district court has misapplied the Guidelines unless the
court of appeals concludes that the district court’s selection of the sentence was
not affected by the error, i.e., that the error was harmless. United States v.
Riccardi, 405 F.3d 852, 875 (10th Cir. 2005) (citing Williams v. United States,
503 U.S. 193, 203 (1992)). In a harmless error case, such as this one, the
government has the burden of demonstrating that Defendant’s substantial rights
were not affected, which does not require proof that the invalid factor was
determinative in arriving at Defendant’s sentence. Williams, 503 U.S. at 203.
In Labastida-Segura, we held that a sentence at the bottom of the
Guidelines range demonstrates that the error is not harmless and warrants an
automatic remand for re-sentencing. Labastida-Segura, 396 F.3d at 1143. That is
not the case here. In this case, the district court, after reviewing the presentence
report and applying the Guidelines enhancement, determined Defendant’s
Guidelines imprisonment range to be from seventy to eighty-seven months. After
making this determination, the sentencing court decided to impose a sentence of
seventy-nine months, in the middle of the Guidelines range. Based on this
sentence, there is no reason to believe that the district court would have imposed
a less severe sentence with its new post-Booker discretion. Riccardi, 405 F.3d at
876. The fact that the district court judge imposed a sentence not at the bottom of
the Guidelines range indicates that there is no reasonable probability that the
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court would reduce Defendant’s sentence on remand post-Booker. See id.
(“Having exercised his limited discretion under the pre-Booker system to give
[Defendant] the highest permissible sentence, there is no reason to think the judge
would exercise his now-greater discretion to reduce the sentence.”). Also, there
are no remarks in the record which demonstrate that the seventy-nine-month
sentence was inappropriate in light of all the circumstances. See id.
Accordingly, even though Defendant’s sentence was imposed in violation
of the Sixth Amendment standards set forth in Booker, the error did not violate
Defendant’s substantial rights and must be disregarded.
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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