United States v. Dowell

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

December 6, 2005
PUBLISH
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-1341

JACK DOWELL,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 01-CR-395-M)

Nancy Holton, (Stacey L. Ross, Golden, Colorado, with her on the briefs),
Boulder, Colorado, for Defendant-Appellant Jack Dowell.

Martha A. Paluch, Assistant United States Attorney (John W. Suthers, United
States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee
United States of America.

Before EBEL, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and
LUCERO, Circuit Judge.

EBEL, Circuit Judge.
 Defendant-Appellant Jack Dowell appeals 1 his convictions for destroying

government property by fire, violating 18 U.S.C. §§ 2, 844(f)(1) & (2), 2 and

forcibly interfering with IRS employees and administration, violating 18 U.S.C.

1
This court granted the Government’s motion to consolidate this appeal
with the appeal of Dowell’s co-defendant, James Cleaver. We will address
Cleaver’s appeal, No. 03-1510, in a separate order and judgment.
2
Title 18, U.S.C. § 2 provides that

(a) Whoever commits an offense against the United States or aids,
abets, counsels, induces or procures its commission, is punishable as
a principal.

(b) Whoever willfully causes an act to be done which if directly
performed by him or another would be an offense against the United
States, is punishable as a principal.

Title 18, U.S.C. § 844(f) provides, in pertinent part, that

(1) Whoever maliciously damages or destroys, or attempts to damage
or destroy, by means of fire or an explosive, any building, vehicle, or
other personal or real property in whole or in part owned or
possessed by, or leased to, the United States, or any department or
agency thereof, or any institution or organization receiving Federal
financial assistance, shall be imprisoned for not less than 5 years and
not more than 20 years, fined under this title, or both.

(2) Whoever engages in conduct prohibited by this subsection, and
as a result of such conduct, directly or proximately causes personal
injury or creates a substantial risk of injury to any person, including
any public safety officer performing duties, shall be imprisoned for
not less than 7 years and not more than 40 years, fined under this
title, or both.

2
§ 2 and 26 U.S.C. § 7212(a). 3 He also argues that United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), entitles him to resentencing. Having jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we AFFIRM Dowell’s

convictions and his sentence. 4

I. FACTS

The evidence at trial established the following: Dowell’s co-defendant

James Cleaver devised a plan to set fire to the Colorado Springs office of the

Internal Revenue Service (“IRS”). Cleaver got several members of his

“constitutional law group” to help him carry out his plan, including Dowell,

Dowell’s cousin Thomas Dowell, and Ronald Sherman. On May 3, 1997, the

group met at a bar at approximately 10:30 p.m. From there, Sherman drove the

3
Title 26, U.S.C. § 7212(a) provides that

[w]hoever corruptly or by force or threats of force (including any
threatening letter or communication) endeavors to intimidate or
impede any officer or employee of the United States acting in an
official capacity under this title, or in any other way corruptly or by
force or by threats of force (including any threatening letter or
communication) obstructs or impedes, or endeavors to obstruct or
impede, the due administration of this title, shall, upon conviction
thereof, be fined not more than $5,000, or imprisoned not more than
3 years, or both, except that if the offense is committed only by
threats of force, the person convicted thereof shall be fined not more
than $3,000, or imprisoned not more than 1 year, or both. The term
“threats of force,” as used in this subsection, means threats of bodily
harm to the officer or employee of the United States or to a member
of his family.
4
We grant defense counsel Nancy Holton’s request to withdraw.

3
group to the IRS building and dropped them off. Dowell positioned himself in the

median next to the building. When the traffic cleared, Dowell, using a two-way

radio, let the group know the coast was clear. Cleaver and Thomas Dowell then

broke the glass door to get into the building and forced their way into the IRS

office. There, they opened all the unlocked filing cabinets and poured gasoline

throughout the files and the office. At one point while Thomas Dowell and

Cleaver were inside the building, Dowell, as the lookout, radioed them that there

was someone walking through the building’s parking lot. After that person was

gone, Cleaver set a fifteen-minute fuse to ignite the gasoline. Cleaver also spray

painted the letters AAR several places in the building. Those letters stood for

Army of the American Republic.

The men then returned to the bar. Cleaver and the two Dowells had a

drink, but Sherman went immediately home.

From the beginning of the investigation into the fire, police believed

Sherman was involved. Sherman, however, testified before a grand jury, in

October 1997, that he had been playing pool at the bar with Cleaver all night on

May 3, 1997, and denied any involvement in the crime. Over the next few years,

federal agents would contact Sherman at home or when he was driving his cab

and ask him about the fire. Federal agents contacted Sherman once every three to

six months, or about six to seven times over the next four years. Sherman always

4
denied any knowledge of the crime. Eventually federal agents informed Sherman

that they were getting close to solving the case and would be charging him with

the crime. At this point, Sherman agreed to cooperate. Sherman eventually pled

guilty to one count of perjury for lying to the grand jury and agreed to testify

against the others. When federal authorities later arrested Dowell in Florida, he

confessed to his part in the crime.

In 2001, the Government indicted Cleaver, Dowell, and Thomas Dowell.

The district court severed Dowell’s trial from that of his co-defendants. A jury

convicted Dowell of destroying government property by fire, violating 18 U.S.C.

§§ 2, 844(f)(1) & (2); and forcibly interfering with IRS employees and

administration, violating 18 U.S.C. § 2 and 26 U.S.C. § 7212(a). The district

court sentenced Dowell to 360 months in prison. 5 Dowell appeals both his

convictions and his sentence.

II. ISSUES

A. Whether the district court denied Dowell due process when it
did not conduct a hearing on the voluntariness of Sherman’s
confession.

On the first day of trial, Dowell filed a motion to exclude Sherman’s

testimony, arguing police had coerced Sherman’s confession by contacting him

5
A jury later acquitted Thomas Dowell. Another jury convicted Cleaver on
four charges and the district court sentenced him to 400 months in prison.

5
“continuously” and telling him that he would face twenty-five to forty years in

prison if he did not cooperate. Dowell based this motion to exclude Sherman’s

trial testimony on the testimony Sherman gave during a pretrial hearing on

co-defendant Cleaver’s suppression motion. The district court denied Dowell’s

motion to exclude Sherman’s testimony at trial, holding any coercion would go to

Sherman’s credibility and Dowell could bring this out on cross-examination. On

appeal, Dowell now asserts that the district court deprived him of due process

when it did not conduct an evidentiary hearing to determine whether Sherman’s

confession to police was voluntary.

Because Dowell never requested that the district court conduct such a

hearing, however, we review Dowell’s argument only for plain error. See Fed. R.

Crim. P. 52(b); see also United States v. Gerber, 24 F.3d 93, 95 (10th Cir. 1994)

(applying plain-error review where defendant failed to request evidentiary

hearing). “Under that test, before an appellate court can correct an error not

raised at trial, there must be (1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002)

(quotations, alterations omitted). “If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotations, alterations omitted). Here, Dowell is unable to

6
establish that the district court erred in failing to conduct an evidentiary hearing

on whether Sherman’s confession was voluntary.

In Jackson v. Denno, the Supreme Court held that

a defendant in a criminal case is deprived of due process of law if his
conviction is founded, in whole or in part, upon an involuntary
confession, without regard for the truth or falsity of the confession,
and even though there is ample evidence aside from the confession to
support the conviction.

378 U.S. 368, 376 (1964) (citations omitted). Further, the defendant has a

“constitutional right at some stage in the proceedings to object to the use of the

confession and to have a fair hearing and a reliable determination on the issue of

voluntariness, a determination uninfluenced by the truth or falsity of the

confession.” 6 Id. at 376-77. When a defendant questions the voluntariness of a

confession, a hearing is mandated. See United States v. Miller, 987 F.2d 1462,

1464, 1465 (10th Cir. 1993) (applying 18 U.S.C. § 3501(a)). Relying on this

authority, Dowell now argues that, once he questioned the voluntariness of

Sherman’s confession, the district court was required sua sponte to conduct an

evidentiary hearing on that issue.

In Jackson v. Denno, however, the defendant was challenging the

6
“The requirement for a hearing on the voluntariness of a defendant’s
confession, articulated in Jackson v. Denno . . . , is codified at 18 U.S.C.
§ 3501(a).” United States v. Miller, 987 F.2d 1462, 1464 (10th Cir. 1993).
Dowell, however, does not make any argument specifically based upon § 3501(a).

7
voluntariness of his own confession. See 378 U.S. at 372. And the cases

applying Jackson v. Denno’s hearing requirement also address only the

voluntariness of the defendant’s own statement. See, e.g., United States v.

Roberts, 14 F.3d 502, 516 (10th Cir. 1993); Miller, 987 F.2d at 1464, 1465. “The

procedure [the Supreme Court] established in Jackson was designed to safeguard

the right of an individual, entirely apart from his guilt or innocence, not to be

compelled to condemn himself by his own utterances.” Lego v. Twomey, 404

U.S. 477, 485 (1972) (emphasis added); see also Mincey v. Arizona, 437 U.S.

385, 398 (1978) (noting “any criminal trial use against a defendant of his

involuntary statement is a denial of due process of law,” citing Jackson v. Denno)

(emphasis altered). Here, on the other hand, Dowell is challenging the

voluntariness, not of his own confession, but of that of a Government witness.

It is clear that Dowell does have standing to challenge the voluntariness of

a witness’s confession. See United States v. Gonzales, 164 F.3d 1285, 1289 (10th

Cir. 1999); see also Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir. 1997)

(42 U.S.C. § 1983 action). In doing so, however, Dowell is not seeking to

vindicate the witness’s Fifth Amendment right against self-incrimination, but

instead is seeking to protect his own right to due process; that is, to a fair trial.

See Gonzales, 164 F.3d at 1289; Clanton, 129 F.3d at 1157-58.

[T]here is a significant difference in the burden of proof applicable
to a claim under the Fifth Amendment and [Dowell’s] claim that the

8
 testimony of a third party is subject to exclusion as a matter of due
process. The burden is on the [Government] to demonstrate the
voluntariness of a defendant’s admissions or confessions . . . . By
contrast, when a defendant makes a motion to exclude coerced
testimony of a third party on due process grounds, the burden of
proving improper coercion is upon the defendant.

People v. Badgett, 895 P.2d 877, 886-87 (Cal. 1995). “Unless a serious factual

dispute can be shown to exist, and one in which, if successful, the defense would

be entitled to exclusion, no hearing at all is necessary.” LaFrance v. Bohlinger,

499 F.2d 29, 36 (1st Cir. 1974); see also State v. Samuel, 643 N.W.2d 423,

432-33 (Wis. 2002) (requiring the defendant to allege sufficient facts that, if true,

would entitle him to exclude the witness’s statement, before district court must

conduct an evidentiary hearing). In this case, Dowell failed to meet his burden of

presenting sufficient evidence to create a “serious factual dispute” suggesting that

Sherman’s confession to police was involuntary. LaFrance, 499 F.2d at 36.

“[T]he standard for determining whether a statement was voluntary is the

same whether we are dealing with a defendant or a third party.” Gonzales, 164

F.3d at 1289 n.1.

A statement is involuntary if the government’s conduct caused the
witness’ will to be overborne and his capacity for self-determination
critically impaired. In determining whether a statement was freely
and voluntarily given, the courts consider the totality of the
circumstances. The relevant circumstances embrace both the
characteristics of the accused and the details of the interrogation.
Relevant factors include the [witness’s] age, intelligence, and
education, the length of detention and questioning, the use or threat
of physical punishment, whether Miranda warnings were given, the

9
 accused’s physical and mental characteristics, the location of the
interrogation, and the conduct of the police officers.

Id. at 1289 (citations, quotations, alterations omitted).

In his pretrial motion to exclude Sherman’s testimony, Dowell alleged that

Sherman’s confession was involuntary only because federal agents contacted

Sherman “continuously” and told him if he did not cooperate “he would be facing

25 to 40 years in jail . . . , but that they would go easy on him if he ‘cooperated.’”

In support of those allegations, Dowell submitted the transcript of Sherman’s

testimony during the earlier pretrial suppression hearing. At that hearing,

Sherman testified that federal agents talked to him right after the fire and then

would contact him every three to six months at his home or work, but for only a

total of six or seven times over four years. During these times, federal agents told

Sherman that they thought he was involved in the fire and that there were going to

be arrests and he would be implicated. Federal agents also told Sherman he was

looking at twenty-five to forty years, but they might go easy on him if he

cooperated. None of these contacts involved custodial interrogations. Sherman

did testify that he generally feared the FBI and worried that federal agents would

kill his dog, ransack his house and send Sherman to a re-education camp. But

none of the federal agents ever threatened him with physical harm.

Sherman’s testimony at the pretrial suppression hearing was insufficient to

create a “serious factual dispute” as to whether Sherman’s confession to police

10
was voluntary. See LaFrance, 499 F.2d at 36. While “a promise of leniency is

relevant to determining whether a confession was involuntary,” this court

considers that as only one factor to be considered within the totality of the

circumstances. Clanton, 129 F.3d at 1158-59 (concluding, in § 1983 action, that

there was genuine factual dispute as to whether witness’s confession was

voluntary, where officers promised witness leniency and lied to him about how

much evidence they had against him). And, although officers did contact

Sherman on a continuing basis, they did so only six or seven times in four years.

Further, the federal agents’s estimation that Sherman faced a possible sentence of

twenty-five to forty years appears fairly accurate, in light of the sentences the

district court imposed on Sherman’s co-defendants. Considering the totality of

the circumstances in this case, therefore, the evidence before the district court

was insufficient to create a “serious factual dispute” as to whether Sherman’s will

was overborne and his confession involuntary. In light of that, the trial court did

not err in failing to conduct an evidentiary hearing. See United States v. Merkt,

794 F.2d 950, 961-62 (5th Cir. 1986) (holding facts concerning voluntariness of

witnesses’s testimony did not warrant evidentiary hearing). Dowell, therefore,

has failed to meet the first prong of the plain-error analysis, establishing that

there was any error. He is not entitled to relief on this claim.

B. Whether the prosecutor improperly vouched for Sherman’s
credibility.

11
 Next, Dowell argues that, on two occasions during closing argument, the

prosecutor improperly vouched for Sherman’s credibility, resulting in an unfair

trial. Defense counsel, during his closing argument, challenged Sherman’s

credibility, pointing out that 1) Sherman had originally testified before the grand

jury that he was not involved in the arson, and 2) in the affidavit in which he first

admitted his involvement in the fire, Sherman did not include all the details to

which he later testified at Dowell’s trial. In response to defense counsel’s

argument, the prosecutor argued, in his rebuttal closing argument, that

[d]efense counsel says in his argument that the Ron Sherman original
affidavit [he gave police when he decided to cooperate] is false. It
was not false. Everything in it’s true. Ron Sherman told you under
oath in his testimony that that was just a summary statement. He told
you under oath he wasn’t going to give all the details at that time.

Then, after addressing defense counsel’s argument that the federal agents’s

testimony was also not credible, the prosecutor further argued to the jury that

“[t]he testimony of the [federal] agents is credible. The testimony of Ron

Sherman is credible and believable.”

Because Dowell failed to object to either of these remarks during the trial,

we again review only for plain error. See Fed. R. Crim. P. 52(b); see also Cotton,

535 U.S. at 631. Dowell has failed to establish that these remarks were plain

error.

This court “give[s] prosecutors considerable latitude where, as here,

12
defense counsel arguably ‘invites’ a response” by challenging the government

witnesses’s credibility. United States v. Broomfield, 201 F.3d 1270, 1276 (10th

Cir. 2000); see also United States v. Young, 470 U.S. 1, 12-13 (1985) (noting “if

the prosecutor’s [erroneous] remarks were ‘invited,’ and did no more than

respond substantially in order to ‘right the scale,’ such comments would not

warrant reversing a conviction”).

Further, even if the prosecutor’s remarks were erroneous, they would not

rise to the level of “‘plain error’ warranting the court to overlook the absence of

any objection by the defense,” again because the prosecutor made these remarks

only in response to defense counsel’s argument. Young, 470 U.S. at 14 (holding

prosecutor’s erroneous remarks did not amount to plain error where defense

counsel’s own improper argument invited prosecutor’s response).

C. Whether Dowell is entitled to resentencing under Booker.

Finally, Dowell asserts that he is entitled to resentencing. In calculating

Dowell’s sentence, the district court applied the sentencing guidelines terrorism

enhancement, U.S.S.G. § 3A1.4. 7 Relying on Blakely v. Washington, 542 U.S.

The district court used the 2002 version of the sentencing guidelines,
7

which provides that

(a) If the offense is a felony that involved, or was intended to
promote, a federal crime of terrorism, increase by 12 levels; but if
the resulting offense level is less than 32, increase to level 32.

(continued...)

13
296 (2004), and now Booker, Dowell argues that in applying that enhancement,

the district court violated the Sixth Amendment. 8 Booker requires that “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the statutory 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.” 125 S. Ct. at 756. Because Dowell raised this argument at

sentencing, 9 we review the issue de novo. See United States v. Stiger, 413 F.3d

1185, 1191 (10th Cir.), cert. denied, 2005 WL 3144402 (2005).

The Government concedes that the district court’s application of the

terrorism enhancement violated the Sixth Amendment and warrants resentencing.

7
(...continued)
(b) In each such case, the defendant’s criminal history category from
Chapter Four (Criminal History and Criminal Livelihood) shall be
Category VI.

U.S.S.G. § 3A1.4.

In his brief, Dowell also asserts that his sentence violates the Fifth
8

Amendment. Because Dowell never further develops that argument and because
we perceive no Fifth Amendment violation, this claim does not warrant relief.
9
Dowell raised this objection before the Supreme Court decided either
Blakely or Booker. In raising this objection at sentencing, Dowell argued that he
“should have received notice of [the terrorism enhancement] in the charging
document, or, in the alternative, an interrogatory provided to the jury to determine
the applicability of this adjustment beyond a reasonable doubt.” He further
argued that he “was entitled to a jury finding beyond a reasonable doubt as to
whether or not there was a risk or death was caused before the terrorism
enhancement can be applied.” That is sufficient to preserve his Booker
arguments.

14
We are not, however, bound by the Government’s concession and instead, in an

effort to use judicial resources most efficiently, we will conduct our own

independent review of the record. See United States v. Resendiz-Patino, 420 F.3d

1177, 1182-83 (10th Cir. 2005) (disregarding Government’s concession of

constitutional Booker error). After independently considering the question, we

affirm Dowell’s sentence.

1. Whether applying the terrorism enhancement violated the
Sixth Amendment.

The terrorism enhancement applies in this case if Dowell’s “offense is a

felony that involved . . . a federal crime of terrorism.” U.S.S.G. § 3A1.4(a). The

Guidelines further define “[f]ederal crime of terrorism” by referring to 18 U.S.C.

§ 2332b(g)(5), see U.S.S.G. § 3A1.4, application note 1, which in turn defines

“[f]ederal crime of terrorism” to be an offense that “is calculated to influence or

affect the conduct of the government by intimidation or coercion, or to retaliate

against government conduct; and” that violates one of a number of specified

federal statutes, including 18 U.S.C. § 844(f)(2). For the terrorism enhancement

to apply in this case, then, Dowell’s offense must have involved an offense

1) “calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct;” and 2) that violated

18 U.S.C. § 844(f)(2). Because the jury’s verdict encompassed these two factual

findings, the district court did not violate the Sixth Amendment by applying the

15
terrorism enhancement.

First, in order for the terrorism enhancement to apply, Dowell’s offense

must have involved an offense “calculated to influence or affect the conduct of

government by intimidation or coercion, or to retaliate against government

conduct.” U.S.S.G. § 3A1.4, application note 1; 18 U.S.C. § 2332b(g)(5)(A).

The jury essentially made this factual finding when it convicted Dowell of

interfering with the IRS. To convict Dowell of that offense, the jury had to find,

beyond a reasonable doubt, that Dowell “endeavored to obstruct or impede the

due administration of the Internal Revenue laws by the use of force” and that

Dowell “did so knowingly and intentionally.” 26 U.S.C. § 7212(a). The trial

court further instructed jurors that

[t]he phrase due administration of the Internal Revenue laws includes
the Internal Revenue Service of the Department of the Treasury
carrying out its lawful functions in the ascertaining of income,
computing, assessing and collecting of income taxes, the auditing of
tax returns and records, and the investigation or possible criminal
violations of the Internal Revenue laws, such as the filing of false or
fraudulent income tax returns.

The term endeavor describes any efforts or act to obstruct or
impede the due administration of the Internal Revenue laws. The
endeavor need not be successful, but it must at least have had a
reasonable tendency to obstruct or impede the due administration of
the Internal Revenue laws.

The jury’s finding beyond a reasonable doubt that Dowell interfered with the IRS,

therefore, sufficed to provide the factual finding that Dowell’s offense was

16
“calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4,

application note 1; 18 U.S.C. § 2332b(g)(5)(A).

Second, in order for the terrorism enhancement to apply, the jury had to

find beyond a reasonable doubt that Dowell’s offense involved a violation of

§ 844(f)(2). See U.S.S.G. § 3A1.4, application note 1; 18 U.S.C.

§ 2332b(g)(5)(B)(i). The jury specifically made this factual finding beyond a

reasonable doubt when the jury convicted Dowell of violating § 844(f)(2). 10

Therefore, the jury made the two factual findings necessary to support applying

the terrorism enhancement: Dowell’s offense involved an offense 1) “calculated

to influence or affect the conduct of government by intimidation or coercion, or to

retaliate against government conduct;” and 2) that violated 18 U.S.C. § 844(f)(2).

U.S.S.G. § 3A1.4, application note 1; 18 U.S.C. § 2332b(g)(5). Therefore, the

district court’s application of the terrorism enhancement did not violate the Sixth

Amendment.

Dowell asserts that, in order for the district court to apply the terrorism

enhancement, the Government had to prove a third element, that in violating

10
Although the Government charged Dowell with violating 18 U.S.C.
§ 844(f)(1) and (2), the jury specifically convicted Dowell of violating § 844(f)(2)
when it found, by special interrogatory, that his “conduct create[d] a substantial
risk of injury to others.”

17
18 U.S.C. § 844(f)(2), Dowell “risked or caused death.” We reject that argument.

Dowell derives this additional element from language in 18 U.S.C.

§ 2332b(g)(5)(B)(i)’s parenthetical following that section’s reference to

§ 844(f)(2) and (3): “the term ‘Federal crime of terrorism’ means an offense

that . . . is a violation of . . . 844(f)(2) or (3) (relating to arson and bombing of

Government property risking or causing death).” 18 U.S.C. § 2332b(g)(5)(B)(i)

(emphasis added). Section 2332b(g)(5)(B)(i)’s parenthetical, however, is merely

a shorthand summary of the offenses set forth in § 844(f)(2) and (3) and is not

intended to engraft new elements into a § 844(f)(2) offense.

Section 844(f)(1) sets forth the basic conduct underlying those offenses:

[w]hoever maliciously damages or destroys, or attempts to damage or
destroy, by means of fire or an explosive, any building, vehicle, or
other personal or real property in whole or in part owned or
possessed by, or leased to, the United States, or any department or
agency thereof, or any institution or organization receiving Federal
financial assistance, shall be imprisoned for not less than 5 years and
not more than 20 years, fined under this title, or both.

18 U.S.C. § 844(f)(1). Section 844(f)(2), then, provides enhanced penalties for

such conduct that also “directly or proximately causes personal injury or creates a

substantial risk of injury to any person.” Finally, § 844(f)(3) provides even

greater enhanced penalties for such conduct that “directly or proximately causes

the death of any person.”

When § 2332b(g)(5)(B)(i) included a parenthetical referring to § 844(f)(2)

18
and (3), there is no suggestion that Congress intended to engraft additional

elements onto those crimes set forth in § 844(f)(2) and (3). Rather,

§ 2332b(g)(5)(B)(i)’s parenthetical contains only a descriptive reference to the

general subject matter of those offenses. The reference in the parenthetical to

“risking or causing death” is obviously because the parenthetical seeks to describe

§ 844(f)(3) as well as § 844(f)(2).

Section 2332b(g)(5)(B)(i) lists a number of other statutes, in addition to

§ 844(f)(2) and (3), each with its own parenthetical. A review of those other

parentheticals confirms that § 2332b(g)(5)(B)(i)’s parentheticals merely reflect

the title or a shorthand or abbreviated reference to those other listed offenses. In

many situations, those other listed offenses include a number of elements or

nuances that § 2332b(g)(5)(B)(i)’s parentheticals do not, and are not meant to,

capture. Therefore, we conclude that the descriptive language in

§ 2332b(g)(5)(B)(i)’s parenthetical describing the offenses in § 844(f)(2) and (3)

does not set forth any additional elements that the Government had to prove in

this case before the district court could apply the terrorism enhancement. Cf.

United States v. Graham , 275 F.3d 490, 517-18 (6th Cir. 2001) (looking to

elements of underlying offense listed in § 2332b(g)(5)(B)(i), rather than language

of § 2332b(g)(5)(B)(i)’s parenthetical).

2. Whether the district court’s non-constitutional Booker
error warrants resentencing.

19
 The district court did commit non-constitutional Booker error when, in

imposing Dowell’s sentence, the court treated the federal sentencing guidelines as

mandatory rather than discretionary. See United States v. Gonzalez-Huerta, 403

F.3d 727, 731-32 (10th Cir.) (en banc), cert. denied, 126 S. Ct. 495 (2005).

Because Dowell adequately preserved his Booker arguments at sentencing, we

review this error under Fed. R. Crim. P. 52(a). Rule 52(a) provides that “[a]ny

error . . . that does not affect substantial rights must be disregarded.” “In

non-constitutional harmless error cases, such as this, the government bears the

burden of demonstrating, by a preponderance of the evidence, that [Dowell’s]

substantial rights were not affected.” United States v. Martinez, 418 F.3d 1130,

1135-36 (10th Cir. 2005), pet. for cert. filed, (U.S. Nov. 10, 2005) (No. 05-7524).

“An error with respect to sentencing does not affect substantial rights when it did

not affect the sentence imposed by the district court.” United States v. Paxton,

422 F.3d 1203, 1207 (10th Cir. 2005) (quotation omitted).

Here, the applicable guideline range was 324-405 months. The district

court imposed a 360-month sentence, which fell in the middle of that range. Even

treating the guidelines as mandatory, the district court had the discretion to

impose a sentence anywhere within the applicable guideline range. In this case,

then, the district court exercised that discretion to impose a sentence in the middle

of the range. The court could have imposed a lower sentence, but chose not to do

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so. “When the district court had undoubted discretion to reduce the sentence

below what it imposed, its decision not to exercise discretion and impose a lower

sentence renders any nonconstitutional Booker error harmless.” Paxton, 422 F.3d

at 1207 (quotation omitted). In this case, therefore, “[w]e have no reason to think

that the district court would impose a different sentence on remand.” 11 Id. The

record thus establishes that the district court’s non-constitutional Booker error did

not affect Dowell’s substantial rights and was, therefore, harmless. See id.

III. CONCLUSION

For the foregoing reasons, we AFFIRM both Dowell’s convictions as well

as his sentence.

Our conclusion is further supported by the district court’s comments
11

during the sentencing proceeding expressly indicating that a 360-month sentence
was warranted in Dowell’s case:

[M]y view of the case of Mr. Dowell is that this was an act of
terrorism. This is exactly what the law was designed for. And in
addition, your approach here to the requirement that you testify at the
trial of Thomas Dowell demonstrates that [you’re] totally unrepentant
with respect to this, and that your attitude towards the United States
Government ha[s] not changed. And, accordingly, I’m going to
sentence you to 30 years, 360 months.

I understand your age [57] and circumstances, but this is under
the requirements of [18 U.S.C. §] 3553(a)(2)(A) [“the need for the
sentence imposed . . . to reflect the serious of the offense, to promote
respect for the law, and to provide just punishment for the offense”],
a matter of a determination here on what is just punishment for the
offense, and I’m sentencing you accordingly.

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