F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 20, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-1232
JAMES LYLE HERRON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 03-CR-161-B)
Philip A. Cherner, Law Office of Philip A. Cherner, Denver, Colorado, for the
Defendant - Appellant.
Martha A. Paluch, Assistant Attorney General (William J. Leone, Acting Attorney
General, with her on the brief), Office of the United States Attorney, Denver,
Colorado, for the Plaintiff - Appellee.
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.
HARTZ, Circuit Judge.
Appellant James Herron was convicted by a jury of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to
235 months’ imprisonment. On appeal he argues that the district court made the
following errors: (1) it admitted into evidence a redacted version of his parole
agreement, which improperly informed the jury of his parole conditions; (2) it
denied his motion for a mistrial after a witness indicated that he had a violent
history; (3) it overruled his objections to portions of the prosecutor’s final
argument that appealed to the conscience of the community; (4) at sentencing it
treated three prior convictions under the Colorado menacing statute as “violent
felonies” under the Armed Career Criminals Act, 18 U.S.C. § 924(e); (5) it denied
his request at sentencing for a downward adjustment based on acceptance of
responsibility; (6) rather than leaving the matter to the jury, it determined that he
had been convicted of violent felonies; and (7) it treated the Sentencing
Guidelines as mandatory, contrary to United States v. Booker, 125 S. Ct. 738
(2005). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We affirm the conviction and sentence.
I. FACTS
On September 7, 2002, Mr. Herron accompanied his girlfriend, Deborah
Lynn, and her daughter to a sporting goods store in Grand Junction, Colorado, to
purchase a firearm. He was on parole at the time and subject to supervision by
the parole division of the Colorado Department of Corrections. Ms. Lynn
testified that she sought the firearm for personal protection. Mr. Herron selected
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a Bersa .380 handgun from the display case, and the store clerk handed it to him.
Both Ms. Lynn and Mr. Herron handled the gun; he pulled the slide and sighted it.
He asked the clerk about the gun’s features, such as its “knock-down power” and
suitability for personal protection. R. Vol. IV at 173. Ms. Lynn testified that the
two eventually chose the gun because it fit Ms. Lynn’s hand.
Ms. Lynn provided identification as the buyer and filled out the firearm-
transaction report. She was cleared as a buyer when the clerk called the Colorado
Bureau of Investigation for a background check. Mr. Herron paid for the gun and
carried it from the store. The transaction was observed by Greg Thares, a former
employee of a private corporation that contracts with the State of Colorado to
monitor parolees. Mr. Thares recognized Mr. Herron and reported what he had
seen to the local parole office.
After the purchase Mr. Herron and Ms. Lynn went into the desert for target
practice. He showed her how to fire the gun, and also fired it himself. They then
took the gun back to Ms. Lynn’s apartment and placed it in a safe, although they
retrieved it later that day so he could show her how to clean it.
Two days later Colorado Parole Officers John Jones and Karen Walters
arrested Mr. Herron while he was at work and took him to his apartment.
Together with a Grand Junction police officer, they searched the apartment. The
Bersa .380 was not there, but they found a receipt for another firearm, a .44
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magnum pistol. The second firearm was eventually traced to its buyer, James
Epple. The officers visited Mr. Epple and showed him a photograph of
Mr. Herron. He told the officers that he recognized the man in the photograph
and that he had sold the gun to him.
Mr. Herron was indicted on two counts of possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(1). Before trial he stipulated
that he had previously been convicted of an offense that carried a penalty of more
than one year in prison. See Old Chief v. United States, 519 U.S. 172, 174 (1997)
(in a § 922(g)(1) prosecution the district court must accept defendant’s stipulation
to the bare fact of a prior felony conviction to avoid unfair prejudice caused by
introduction of evidence revealing the nature of the prior offense). At trial the
government called eight witnesses to establish the above-recited events. It also
proved that both weapons had been transported in interstate commerce, an
element of the charged offenses. See § 922(g).
Mr. Epple, however, was unable to identify Mr. Herron at trial as the
purchaser of the second weapon, the .44 magnum. The district court then struck
Mr. Epple’s testimony as irrelevant, and at the close of the government’s
evidence, it dismissed the charge relating to that weapon. But cf. Fed. R. Evid.
801(d)(1)(c) (prior statement of trial witness identifying a person is not hearsay);
United States v. Ingram, 600 F.2d 260, 261 n.* (10th Cir. 1979) (same). As for
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the first weapon, the Bersa .380, Mr. Herron’s theory of defense was that his
possession was “innocent” because it was transitory and for no illicit purpose.
During the examination of Parole Officer Walters, the government offered
into evidence Mr. Herron’s parole agreement to establish that it was a condition
of his parole that he not possess a firearm. Defense counsel objected to the
admission of the document, noting that it contained other parole conditions that
might prejudice the jury. The district court agreed to redact many of the
conditions but did not redact conditions requiring Mr. Herron to report regularly
to his parole officer, to allow searches by his parole officer, to submit to drug
testing upon request, and not to possess firearms or other deadly weapons. After
the redactions defense counsel objected only to the inclusion in the redacted
document of the text of the Colorado statute prohibiting possession of firearms by
convicted felons.
Much of the testimony of Parole Officer Walters related to the .44 magnum.
She explained that authorities were eager to locate it because they believed it was
in the possession of a parolee with a history of violence. Expressing concern that
the testimony would be understood as saying that it was Mr. Herron who had a
violent history, defense counsel objected and moved for a mistrial. The district
court denied the motion but instructed the jury to disregard any reference to
Mr. Herron’s history.
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In closing argument the prosecutor attacked Mr. Herron’s innocent-
possession defense, calling it inapplicable in the circumstances of this case and
explaining when, in his view, it might apply. Defense counsel objected to some
of the prosecutor’s comments as improper “commentary on the jury’s verdict.”
R. Vol. VI at 499. The district court overruled the objections.
The jury convicted Mr. Herron of possessing the Bersa .380. At
sentencing, Mr. Herron requested a downward departure on various grounds,
including his acceptance of responsibility for his offense. The district court
denied the request. Also, it ruled that an enhancement was required by the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because Mr. Herron had three
prior state convictions for menacing, see Colo. Rev. Stat. Ann. § 18-3-206 (1999)
(amended 2000), which qualified as a “violent felony” under the ACCA. The
court sentenced Mr. Herron to 235 months’ imprisonment, the minimum in the
applicable guideline range.
II. DISCUSSION
A. Evidentiary Rulings
1. Parole Agreement
During trial the government sought to introduce Mr. Herron’s parole
agreement to establish that Mr. Herron was aware that it was a condition of his
parole that he not possess a firearm. Defense counsel did not challenge that
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purpose but objected to the admission of the agreement because he could be
prejudiced by other terms of his parole, specifically referring to mental health
evaluations, drug and alcohol treatment, and limitations on alcohol consumption.
The district court redacted parts of the agreement but left intact both Condition 4,
which required Mr. Herron to report regularly to his parole officer, to allow
searches by his parole officer, and to submit to drug testing; 1 and Condition 5,
which forbade him from possessing firearms. 2 After the court’s ruling, defense
counsel objected only to the failure to redact from the agreement the text of Colo.
Rev. Stat. Ann. § 18-12-108 (2003), the Colorado statute barring possession of
firearms by convicted felons. The district court overruled the objection.
1
Condition 4 stated in full:
Report: Parolee shall make written, and in person, reports as
directed by the Parole Officer; and shall permit visits to his place of
residence as required by the Parole Officer.
a. Parolee further shall submit urinalysis or other tests for
narcotics or chemical agents upon the request of the Parole
Officer, and is required to pay for all tests.
b. Parolee further agrees to allow the Parole Officer to search
his person, or his residence, or any premises under his control,
or any vehicle under his control.
Aplt. Br., Ex. 26.
2
Condition 5 stated in full:
Weapons: Parolee shall not own, possess, nor have under his control
or in his custody, firearms or other deadly weapons.
Aplt. Br., Ex. 26.
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Mr. Herron now challenges the inclusion of the text of the Colorado statute,
Condition 4, and Condition 5 as violations of Federal Rules of Evidence 403
(relevant evidence must be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice) and 404(b) (evidence of prior bad
acts may not be admitted to prove the character of defendant to show action in
conformity therewith). Because only the first challenge was presented below, we
address it separately.
a. The Colorado Statute
Mr. Herron argues that the text of § 18-12-108 included on the second page
of the parole agreement was irrelevant and potentially confusing. We need not
resolve whether this portion of the agreement was relevant to Mr. Herron’s
innocent-possession defense, because any error in its inclusion in the redacted
agreement was harmless. “Even if a court has admitted inadmissible evidence . . .
a conviction will not be disturbed on appeal if that error is harmless.” United
States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004). Such an error is harmless
if it did not have “a substantial influence on the outcome” of the trial “or leaves
one in grave doubt as to whether it had such effect.” Id. (internal quotation marks
omitted). Mr. Herron does not complain about any specific language of the
statute. And the substance of the statute—that Colorado law forbids convicted
felons to possess firearms—was repeatedly presented to the jury on other
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occasions without objection. We simply fail to see how a defendant being tried
on a federal charge of being a convicted felon in possession of a firearm suffers
unfair prejudice from evidence that such possession also violates state law.
Mr. Herron argues that reference to the state statute improperly showed that he
was guilty of “other misconduct.” Aplt. Br. at 7. But, of course, there was no
other misconduct—the same act simply violated two virtually identical statutes.
b. Conditions 4 and 5
In his brief on appeal Mr. Herron challenged the failure to redact
Condition 5 from the parole agreement, and at oral argument he challenged the
failure to redact Condition 4. Because he raised neither issue in the court below,
our review is limited to plain error. See United States v. Youts, 229 F.3d 1312,
1320 (10th Cir. 2000). “Plain error occurs when there is (1) error, (2) that is
plain, which (3) affects substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal
quotation marks omitted). Ordinarily, an error “affects substantial rights” only if
it “affected the outcome of the district court proceedings.” Id. Even assuming
that Mr. Herron can satisfy the first two prongs of the plain-error test, he cannot
satisfy this third-prong requirement.
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Anything in Conditions 4 and 5 that may have been prejudicial had already
been presented to the jury from other sources, including his own attorney. In his
opening statement defense counsel referred to Mr. Herron’s status as a parolee,
his urinalysis testing, and the parole agreement’s prohibition on his having a gun.
Mr. Thares, the first trial witness, testified that he recognized Mr. Herron from
his former job at the parole office, where he collected urine samples, including
Mr. Herron’s, for testing. Defense counsel did not object to this testimony, and
questioned Mr. Thares further about urinalysis during cross-examination. Parole
Officer Walters testified about the parole search of Mr. Herron’s house. In these
circumstances, we cannot see how admission of the redacted parole agreement
could have affected the verdict. Cf. Griffin, 389 F.3d at 1104-05 (admission of
parole agreement was harmless error).
2. “Violent History”
The testimony of Parole Officer Walters related in large part to the second
weapon, the .44 magnum, and the search for parolee Gary Adamson after the
parole officers had received information that it was in his possession. During
redirect examination the prosecutor questioned her about the urgency of this
search:
Q: Ms. Walters, was there a particular factor in this case that gave
an immediacy to parole’s role in the investigation?
A: Yes, there was. There was a public safety factor of a parolee
with a violent history possibly in possession of weapons.
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Q: And when you believed that Mr. Adamson may have been in
possession of a weapon, it is then that you took the steps that
you recounted?
A: Do you mean Mr. Herron?
Q: No, the focus on what Mr. Adamson and why didn’t you focus
on Mr—
R. Vol. V at 297. Defense counsel moved for a mistrial, arguing that Parole
Officer Walters had just told the jury that Mr. Herron had a violent history, which
was highly prejudicial. The district court denied the motion but instructed the
jury, “Ladies and gentlemen, I have stricken from the record and taken entirely
out of the case any reference to Mr. Herron’s history, any reference at all in that
respect as testified by this witness, and you will disregard it entirely.” R. Vol. V
at 298.
We review for abuse of discretion the denial of a motion for mistrial. See
United States v. Kravchuk, 335 F.3d 1147, 1154 (10th Cir. 2003). “A mistrial
may only be granted when a defendant’s right to a fair and impartial trial has been
impaired.” Id. at 1155. As we read the record, the “parolee with a violent
history” was Mr. Adamson, not Mr. Herron. The previous eight pages of
testimony focused on Mr. Adamson, not Mr. Herron. Moreover, the district court
immediately instructed the jury to disregard any reference to “Mr. Herron’s
history.” R. Doc. V. at 298. “We presume that jurors will follow clear
instructions to disregard evidence unless there is an overwhelming probability
that the jury will be unable to follow the court’s instructions, and a strong
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likelihood that the effect of the evidence would be devastating to the defendant.”
United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir. 2002) (internal
quotation marks omitted). We see no reason to reject the presumption in the
circumstances presented here. The district court did not abuse its discretion in
refusing to grant a mistrial. See United States v. Maynard, 236 F.3d 601, 606-07
(10th Cir. 2000) (no abuse of discretion in denying mistrial when judge gave
strong curative instruction).
3. Closing Argument
Throughout trial Mr. Herron’s defense was that he had possessed the Bersa
.380 innocently–that is, that his possession was only transitory and for no illicit
purpose. Defense counsel sought and obtained the following jury instruction:
Instruction 18.
It is a defense to the charge of unlawful possession of a
firearm that the defendant’s possession of the firearm constituted
innocent possession.
Possession of a firearm constitutes innocent possession where:
1. The firearm was obtained innocently and held with no
illicit purpose; and
2. Possession of the firearm was transitory, i.e., in light of
the circumstances presented there is a good basis to find
that the defendant took adequate measures to rid himself
of possession of the firearm as promptly as reasonably
possible.
If you find that the defendant possessed a firearm specified in
Count 1 and that possession constituted innocent possession, you
should find the defendant not guilty.
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R. Vol. VI at 483-84.
Mr. Herron now contends that the district court should have sustained two
objections to statements regarding this defense by the prosecutor during closing
argument, and that as a result he was denied his right to a fair trial. While
arguing to the jury that Mr. Herron’s innocent-possession defense was
inapplicable to the facts of the case, the prosecutor said, “This defense was meant
for different circumstances. Let’s think of an example. If there’s a felon”—at
which point Mr. Herron objected, saying that the court had “instructed the jury on
this defense based on the evidence in this case.” R. Vol. VI at 498. The
objection was overruled, and the prosecutor continued:
Let’s talk about an example. If there’s a felon walking down the
street, and he crosses a playground full of children, and he sees in the
playground a gun, he picks it up, and he immediately calls the police
and says, I found a gun, and turns it over to them. I could understand
why in that case the guy had innocent motives and we might consider
this defense. We’re not even close to that here.
Finally, on this issue, you must find that Mr. Herron—I think it’s
impossible to find that Mr. Herron acquired the gun innocently. He
simply didn’t.
R. Vol. VI at 498-99. Mr. Herron now argues that this statement improperly told
the jurors that they could disregard Instruction No. 18.
The prosecutor continued the argument by pointing out that Mr. Herron
knew from his parole agreement that he was not allowed to handle a gun for any
reason, that he willingly and knowingly handled the gun in the store instead of
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asking the clerk to assist Ms. Lynn, and that he did not dispose of the gun
immediately after handling it but carried it out of the store and later fired it. The
prosecutor then said, “I think that if you acquit on this basis what you are saying
is that felons can hold and shoot guns so long as”—at which point Mr. Herron
again objected, saying that a “commentary on the jury’s verdict” was
inappropriate. R. Vol. VI at 499. The district court overruled this objection as
well and the prosecutor proceeded:
What you’re saying, if you find this defense applicable, is that so
long as there’s some basis for concluding that a felon was helping a
friend, he can hold a gun even though there’s no imminent risk of
harm to him or that friend. This is not what Congress intended.
Under the circumstances of this case, as soon as Mr. Herron picked
up the gun and held it in his hands, he broke the law.
R. Vol. VI at 500. Mr. Herron did not object further or request a mistrial. He
now claims that this second remark was an improper appeal to the “conscience of
the community.” Aplt. Br. at 12.
When assessing allegations of prosecutorial misconduct, “[w]e must first
examine whether the prosecutor's conduct was in fact improper, and if so, then
determine whether the error was harmless beyond a reasonable doubt.” United
States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004) (internal quotation
marks, brackets, and ellipses omitted). We determine whether such an error was
harmless beyond a reasonable doubt by considering “the curative acts of the
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district court, the extent of the misconduct, and the role of the misconduct within
the case as a whole .” Id.
We have long held that “[p]rosecutors have considerable latitude to respond
to an argument made by opposing counsel.” United States v. Hernandez-Muniz,
170 F.3d 1007, 1012 (10th Cir. 1999); United States v. Merryman, 630 F.2d 780,
789 (10th Cir. 1980) (“It is well settled that the attorney prosecuting the case on
behalf of the government is authorized to respond to exculpatory arguments made
by defendants during closing arguments.”). Most of the prosecutor’s comments
were proper argument based on the court’s instruction. The prosecutor was
simply arguing that the innocent-possession defense did not apply to the facts of
Mr. Herron’s case. The only somewhat troubling comment by the prosecutor was
that if the jury adopted the innocent-possession defense, a convicted felon could
possess a gun “as long as there’s some basis for concluding that [the] felon was
helping a friend.” R. Vol. VI at 500. It is improper to argue that an acquittal in
accordance with the court’s instructions would be an unacceptable result. But the
prosecutor did not exceed the bounds of propriety. The argument did not
challenge the authority of the court’s instructions. After pointing to the salient
facts that were inconsistent with the innocent-possession defense set forth in the
instructions, the prosecutor was trying to emphasize the absurdity of recognizing
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the defense in such circumstances. The language used was unfortunate but
tolerable in the excitement of final argument.
4. Cumulative Error
Mr. Herron urges that we consider the above “errors” cumulatively to
determine whether a new trial is warranted. “A cumulative-error analysis
aggregates all errors found to be harmless and analyzes whether their cumulative
effect on the outcome of the trial is such that collectively they can no longer be
determined to be harmless.” United States v. Toles, 297 F.3d 959, 972 (10th Cir.
2002) (internal quotation marks omitted). As the above analysis shows, there was
no cumulative error here.
B. Application of the ACCA
1. Violent Felony
Mr. Herron next claims that the district court erred in ruling that a violation
of the Colorado menacing statute, Colo. Rev. Stat. Ann. § 18-3-206 (1999)
(amended 2000), qualifies as a violent felony under the ACCA. The ACCA
mandates a minimum 15-year sentence for a violation of § 922(g) if the violator
has three prior violent-felony convictions. See 18 U.S.C. § 924(e)(1).
Mr. Herron had three state convictions for menacing. We review the district
court’s ruling de novo. See United States v. Moore, 401 F.3d 1220, 1226 (10th
Cir. 2005).
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The ACCA defines a violent felony as
any crime punishable by imprisonment for a term exceeding one year,
or any act of juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that—(i) has as
an element the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The key phrase here is “threatened use of physical
force.” The actual use of force is not necessary to make a crime a violent felony;
all that is required is the threat of such force against another’s person.
The Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), held
that to determine whether a crime qualifies as a violent felony under the ACCA, a
court must ordinarily use “a formal categorical approach, looking only to the
statutory definitions of the prior offenses, and not to the particular facts
underlying those convictions.” Id. at 600. But cf. Shepard v. United States, 125
S. Ct. 1254, 1263 (2005) (in certain circumstances a court may look to documents
and records pertaining to the offense). The Colorado menacing statute reads:
A person commits the crime of menacing if, by any threat or physical
action, he or she knowingly places or attempts to place another
person in fear of imminent serious bodily injury. Menacing is a class
3 misdemeanor, but, if committed by the use of a deadly weapon it is
a class 5 felony.
Colo. Rev. Stat. Ann. § 18-3-206 (1999) (amended 2000). The Colorado Criminal
Code defines “serious bodily injury” as
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bodily injury which, either at the time of the actual injury or at a later
time, involves a substantial risk of death, a substantial risk of serious
permanent disfigurement, a substantial risk of protracted loss or
impairment of the function of any part or organ of the body, or
breaks, fractures, or burns of the second or third degree.
Id. § 18-1-901(p) (2003).
Mr. Herron’s convictions were undoubtedly for violent felonies. He
“knowingly place[d] or attempt[ed] to place another person in fear of imminent
serious bodily injury . . . by the use of a deadly weapon.” Id. § 18-3-206. This
conduct easily satisfies the requirement of “the threatened use of physical force
against the person of another,” under the ACCA. 18 U.S.C. § 924(e)(2)(B)(i).
“Knowingly placing someone in fear . . . by the use of a deadly weapon” certainly
constitutes threatening someone. Mr. Herron argues that menacing cannot be a
violent felony because under Colorado law the term deadly weapon is defined so
broadly as to include a fist, foot, or whiskey bottle, so that menacing includes
conduct such as telling someone over the telephone “that one intends to punch or
kick them the next day, or within the next few hours, depending on the
interpretation of the phrase ‘imminent.’” Aplt. Br. at 17. But this observation is
beside the point. A threat to kick or strike someone comes within the ACCA
definition regardless of whether a foot or bottle is a deadly weapon. We reject
Mr. Herron’s argument.
C. Acceptance of Responsibility
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Mr. Herron claims that the district court erred by failing to grant a
downward adjustment under the Sentencing Guidelines for acceptance of
responsibility. He argues that he is entitled to the adjustment because he admitted
his “factual guilt” in pretrial statements to Parole Officer Walters (which he later
successfully moved to suppress) and again at his parole revocation hearing. Aplt.
Br. at 22.
We review under a clearly-erroneous standard a district court’s finding that
a defendant is not entitled to such an adjustment. See United States v. Wooten,
377 F.3d 1134, 1145 (10th Cir. 2004). The district court’s refusal to grant the
downward adjustment is “entitled to great deference on review.” Id. (internal
quotation marks omitted).
Under the Sentencing Guidelines the acceptance-of-responsibility
adjustment is to be granted “[i]f the defendant clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sentencing Guidelines Manual § 3E1.1(a)
(2004). Application Note 2 states that the adjustment “is not intended to apply to
a defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.” Id. cmt. n.2. Mr. Herron correctly notes, however, that
conviction at trial does not automatically prevent him from seeking the
adjustment; in “rare situations” the adjustment may still be granted even though
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the defendant has gone to trial. Id. Application Note 2 gives an example of such
a rare situation: “where a defendant goes to trial to assert and preserve issues that
do not relate to factual guilt (e.g., to make a constitutional challenge to a statute
or a challenge to the applicability of a statute to his conduct).” Id.
The district court found that Mr. Herron did not admit factual guilt. Three
elements must be proved to establish a violation of 18 U.S.C. § 922(g)(1): “(1)
the defendant was convicted of a felony; (2) the defendant thereafter knowingly
possessed a firearm, and (3) possession was in or affecting interstate commerce.”
Griffin, 389 F.3d at 1104. Mr. Herron stipulated only to the first element. The
district court found at the sentencing hearing that he had challenged the knowing-
possession element of the crime; at no time during the trial did he concede that he
had ever handled the gun, carried it out of the store, or fired it. The prosecution
accordingly called witnesses to establish these facts, and defense counsel tested
their testimony on cross-examination. The district court also found that
Mr. Herron “[c]learly and indisputably” challenged the jurisdictional element of
both offenses. R. Supp. Vol. I at 10. The government called two witnesses to
establish that the guns had moved in interstate commerce. While the prosecution
was examining Mr. Atzmiller, the chief financial officer of the manufacturer of
the .44 magnum, the court called counsel to the bench, where the following
colloquy occurred:
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THE COURT: You can go through this unless the defense
is willing to stipulate that the pistol in
question was transported in and affecting
interstate commerce.
[DEFENSE COUNSEL]: I would like to do that, possibly,
except I don’t think Mr. Herron
wants to do it, and I am going to
respect his wishes on that. . . .
THE COURT: We’ll go through this painful process, I
guess.
R. Vol. V at 309.
Moreover, the court noted that Mr. Herron never claimed that the trial was
held only to preserve issues unrelated to factual guilt so that those issues could be
appealed. Accordingly, the court determined that the downward adjustment was
not warranted. Based on this record, we would find an abuse of discretion if the
district court had granted the downward adjustment. The district court’s
determination was certainly not clearly erroneous.
D. Prior Convictions
Mr. Herron next claims that the district court violated his Sixth Amendment
and Due Process rights when it, rather than the jury, determined that he had three
prior violent-felony convictions. This claim is foreclosed by United States v.
Moore, 401 F.3d 1220 (10th Cir. 2005).
E. Booker Error
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While Mr. Herron’s appeal was pending, the Supreme Court issued its
opinion in United States v. Booker, 125 S. Ct. 738 (2005). Booker held 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.” Booker, 125 S. Ct. at 756. “As a result, the . . .
mandatory application of the [United States Sentencing] Guidelines violates the
Sixth Amendment when judge-found facts, other than those of prior convictions,
are employed to enhance a sentence.” Gonzalez-Huerta, 403 F.3d at 731. The
Supreme Court in Booker therefore “excised 18 U.S.C. § 3553(b)(1), which made
the imposition of a Guidelines sentence mandatory in the vast majority of cases.”
Id. Consequently, federal district courts “are still required to consider the
Guidelines in determining sentences, but they are not required to impose a
sentence within the Guidelines range.” Id.
Mr. Herron does not argue that his Sixth Amendment rights were violated
by judicial fact-finding; instead, he asserts that the district court erred under
Booker by sentencing him under a mandatory application of the Sentencing
Guidelines. When “the resulting [mandatory] sentence was calculated solely upon
facts that were admitted by the defendant, found by the jury, or based upon the
fact of a prior conviction,” this court uses the term “nonconstitutional Booker
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error” to identify the error. Id. at 731-32. Mr. Herron concedes that he did not
raise this issue in the district court, so our review is for plain error. See Fed. R.
Crim. P. 52(b); Gonzalez-Huerta, 403 F.3d at 732.
“Plain error occurs when there is (1) error, (2) that is plain, which (3)
affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732
(internal quotation marks omitted). The government concedes the first two
prongs of the plain-error test, but argues that Mr. Herron has not met the third or
fourth prongs. Because Mr. Herron cannot satisfy the fourth prong of plain-error
review, we need not consider the third. See id. at 736.
“In an instance of non-constitutional error the standard for satisfying the
fourth prong of the plain error test is demanding. A party that fails to raise an
argument in the district court must show that allowing a non-constitutional error
to stand would be particularly egregious and would constitute a miscarriage of
justice.” United States v. Jones, 425 F.3d 1274, 1276 (10th Cir. 2005) (internal
quotation marks and citation omitted). “Whether the district judge would have
imposed a sentence lower than the Guidelines range is . . . a key
consideration . . . .” Id. at 1276 .
Mr. Herron has not met this burden. The district court did comment at the
sentencing hearing that it was required to apply the Sentencing Guidelines and
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that the nature of Mr. Herron’s case involved “some mitigating circumstances.”
R. Supp. Vol. I at 49. But the district court also described Mr. Herron as “the
type of person who quintessimally [sic] should not have possessed this weapon,”
R. Supp. Vol. I at 35, and noted, “I do have a responsibility to protect the public
from an individual who simply refuses or cannot conform conduct to the law.”
R. Supp. Vol. I at 50. Further, although the district court sentenced Mr. Herron at
the bottom of the guidelines range, it gave no indication that it would exercise
greater leniency if given the chance. See United States v. Nguyen, 413 F.3d 1170,
1184-85 (10th Cir. 2005). “Nothing in the record suggests that were this court to
remand, the district judge would not simply reimpose the same sentence, nor does
anything in the record suggest any unfairness in the sentencing.” Jones, 425 F.3d
at 1276. “Mandatory treatment of the Guidelines in this case did not seriously
affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at
1277. Accordingly, we affirm Mr. Herron’s sentence.
III. CONCLUSION
We AFFIRM Mr. Herron’s conviction and sentence.
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