F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 23, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-2301
MICHAEL MARSHALL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-03-2366-MCA)
David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney with him on the briefs), Albuquerque, New Mexico, for Plaintiff-
Appellee.
Joe M. Romero, Jr., Romero & Associates, (Jody Neal-Post with him on the
briefs) for Defendant-Appellant.
Before KELLY, O’BRIEN and TYMKOVICH, Circuit Judges.
O’BRIEN, Circuit Judge.
Michael Marshall appeals from a sentence imposed after he pled guilty to
possession with intent to deliver more than 50 grams of a substance containing
methamphetamine. Under the United States Sentencing Guidelines (USSG), the
“actual” amount of methamphetamine “refer[s] to the weight of
[methamphetamine], itself, contained in the mixture or substance.” USSG
§2D1.1(c), n.(B) (2003). 1 At sentencing, over Marshall’s objection, the district
court concluded the appropriate drug quantity to be considered included 17.4
grams (actual) Marshall admitted to selling on two occasions, as well as 19.6
grams (actual) found in Marshall’s home. Marshall complains the inclusion of
methamphetamine found in his home violates the Sixth Amendment as interpreted
in United States v. Booker, 534 U.S. 220, 125 S. Ct. 738 (2005). Exercising
jurisdiction under 18 U.S.C. § 3742, we AFFIRM.
Background
The facts are not contested. On October 4, 2003, Marshall sold 28.6 net
grams 2 (6.8 grams (actual)) of a substance containing methamphetamine to an
individual who was arrested later that day. Upon his arrest, the individual
(informant) revealed Marshall as the source of his drugs and agreed to participate
1
Marshall’s sentence was calculated according to the 2003 Sentencing
Guidelines. Thus, all references to the Guidelines are to the 2003 Guidelines
unless otherwise noted.
2
“Net grams” refers to the weight of a mixture or substance reduced by the
“materials that must be separated from the controlled substance before the
controlled substance can be used,” for example, packaging. USSG §2D1.1 cmt.
n.1.
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in a controlled buy. On October 5, 2003, the informant executed the controlled
buy, receiving 26.4 net grams (10.6 grams (actual)) of methamphetamine from
Marshall. A search warrant was issued for Marshall’s residence and Marshall was
arrested. While police searched Marshall’s home, Marshall was questioned
regarding the whereabouts of the money he obtained from the controlled buy.
Eventually, Marshall disclosed where the money could be found along with
another quantity of methamphetamine. Proceeding to the location identified by
Marshall, the officers found the money and two cellophane bags containing 27.4
and 26.9 net grams of methamphetamine (a total of 19.6 grams (actual)).
On November 21, 2003, Marshall was indicted on two counts in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On April 12, 2004, Marshall pled guilty
to Count II, possession with intent to distribute 50 grams and more of a mixture
and substance containing methamphetamine. The other count was dismissed. The
pre-sentence report (PSR) recommended that the amount of methamphetamine
attributable to Marshall’s offense include both the drugs he admitted selling on
October 4 and 5, 2003 (a total of 17.4 grams (actual)), and the 19.6 grams (actual)
found with the buy money.
While the PSR was being prepared, the Supreme Court issued its decision
in Blakely v. Washington holding that in a state prosecution the Sixth Amendment
requires the maximum permissible sentence in a particular case be determined
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solely by reference to “facts reflected in the jury verdict or admitted by the
defendant.” 542 U.S. 296, 124 S. Ct. 2531, 2537 (2004). As a result of Blakely,
Marshall objected to using the 19.6 grams methamphetamine (actual) found in his
residence to calculate his base offense level, arguing that those drugs were for his
personal use and he never admitted an intent to distribute them.
Overruling Marshall’s objections, the district court declined to apply
Blakely to the sentencing guidelines and adopted the PSR's findings as to the
appropriate quantity of drugs. Because it found the relevant quantity of
methamphetamine was 37 grams (actual) 3, the court applied a base offense level
of 30. See USSG §2D1.1(c)(5). The district court also concluded Marshall was
entitled to a two-level reduction under the safety valve provision of USSG
3
Definitions and quantities have the potential to confuse. The statute of
conviction refers to a substance containing methamphetamine (net grams), but the
sentence depends upon the actual weight of the methamphetamine alone. The
table below summarizes the net and actual weight of methamphetamine involved
in each relevant event.
Date Event Net Grams Actual Methamphetamine
October 4, 2003 Sale 28.6 6.8
October 5, 2003 Sale 26.4 10.6
October 5, 2003 Search 54.3 (27.4 + 26.9) 19.6
Total 109.3 37.0
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§5C1.2 4 and a three-level reduction for acceptance of responsibility pursuant to
USSG §3E1.1(a) and (b). Accordingly, the court adjusted the offense level to 25.
With an offense level of 25 and a criminal history category of I, the applicable
guideline range was fifty-seven to seventy-one months imprisonment. The district
court sentenced him to fifty-seven months imprisonment.
While this appeal was pending, the Supreme Court issued its decision in
Booker, applying its Blakely holding to the guidelines and reaffirming 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. On appeal, Marshall maintains that
under Blakely and Booker, the district court could consider only the amount of
drugs he admitted to selling when calculating his sentence. If Marshall is correct
and assuming the other sentencing factors remain the same, his base offense level
would be 21. See United States v. Clark, 415 F.3d 1234, 1238 (10th Cir. 2005)
(acceptance of responsibility adjustment must be included in calculation of
sentencing range under Sixth Amendment). With a criminal history category of 1,
4
This provision directs the district court to sentence beneath the statutory
five year minimum term of imprisonment for Marshall’s offense if certain
predicates are met. In addition, if the district court concludes the safety valve
provision applies, the guidelines instruct the court to deduct two points from the
base offense level. USSG §2D1.1(b)(6).
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Marshall’s sentencing range would be thirty-seven to forty-six months
imprisonment. USSG §5 pt. A.
Discussion
Marshall argues the district court violated his Sixth Amendment rights by
imposing a sentence based on facts it found by a preponderance of the evidence
pursuant to the then-mandatory sentencing guidelines. Specifically, he asserts
that, in light of Blakely and Booker, the district court committed constitutional
error in using uncharged drug-related conduct to calculate his base offense level.
Because Marshall preserved the error below under Blakely, it is sufficient to
preserve sentencing error under Booker. United States v. Clifton, 406 F.3d 1173,
1175 n.1 (10th Cir. 2005) (this court “must apply the holdings in Blakely and
Booker to all cases in which a defendant properly raised an issue under either
case.”). Where a defendant preserves a potential Booker error, we apply a
harmless error analysis. United States v. Serrano-Dominguez, 406 F.3d 1221,
1222 (10th Cir. 2005).
There are two types of error under Booker: constitutional error and
non-constitutional error. United States v. Gonzalez–Huerta, 403 F.3d 727, 731-32
(10th Cir.) (en banc), cert. denied, 126 S.Ct. 495 (2005). Constitutional Booker
error occurs when a judge-found fact (other than a prior conviction) increases a
defendant's sentence beyond the maximum authorized by a jury's verdict or a plea
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of guilty through the application of mandatory guidelines. Booker, 125 S. Ct. at
756. This case does not present constitutional Booker error because Marshall’s
sentence was not enhanced based on judicial fact-finding.
Marshall’s claim that he never admitted to an intent to distribute the
methamphetamine found in his home is belied by his guilty plea. Marshall pled
guilty to Count II, possession with intent to distribute 50 grams and more of a
mixture and substance containing methamphetamine. A plea of guilty is an
admission of all the essential elements of the charge. McCarthy v. United States,
394 U.S. 459, 466 (1969); United States v. Powell, 159 F.3d 500, 503 (10th Cir.
1998).
Because the government’s offer of proof at the district court’s acceptance
of Marshall’s guilty plea is pivotal to the resolution of Marshall’s claim, we
repeat it in detail:
Your Honor, if this matter were to proceed to trial, the government
would prove, beyond a reasonable doubt, through competent evidence
that during the early morning hours of October 5, 2003, Region II
Narcotics Task Force agents met with a confidential informant. This
CI agreed to conduct a purchase of methamphetamine from the
defendant. The informant was suited with a recording device. The
agents drove the informant to the area near the defendant’s home.
They observed the informant enter the defendant’s home.
...
During that meeting, the informant purchased approximately . . . 26.4
net grams of methamphetamine. This substance was tested by the
DEA lab, and it was positive for methamphetamine, and the weight
was 26.4 net grams.
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...
During the morning of October 5, 2003, the task force agents
executed a search warrant at the defendant’s home. Upon searching
of [sic] the home, they located 50.5 net grams of methamphetamine
in the defendant’s bathroom in a black case. This methamphetamine
was tested by the DEA lab, and it was, indeed, positive for
methamphetamine and the net weight is 50.5 grams.
Along with the methamphetamine, agents located $1,240 in buy
money. This was the money that they had provided to the informant
earlier in the day to purchase the ounce that agents believed was
purchased from the defendant. During a post-arrest interview, the
defendant admitted that the methamphetamine did belong to him.
...
Just one last added matter. The substance that was possessed by
defendant is a quantity sufficient for distribution, and therefore,
agents will testify that the 50.5 net grams is a quantity that is more
consistent with distribution as opposed to personal use.
(Appellant’s Appx. at 35-37.) Marshall then entered his plea of guilty without
objection or clarification. 5
There is no mention of the October 4, 2003 sale at either the plea hearing or
in the plea agreement. Thus, the government’s offer of proof and Marshall’s
5
Marshall’s only reference to drug quantities was made earlier in the
hearing as follows:
[A]lthough Mr. Marshall is, in fact, pleading to Count 2 of this two
count indictment, he is going to likely challenge the quantity
calculation on Count 2 based on potential issues of sentencing
entrapment or issues of that sort at sentencing. We have discussed
those with the government and made clear that as a basis for
departure, that’s what we might be bringing forward to the Court at
the time of sentencing, and the -- it would be in the form of
departure, and we have discussed that with the government.
(Appellant’s Appx. at 31.) On appeal, Marshall does not dispute the district
court’s refusal to depart from the guideline sentence.
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guilty plea referred solely to the drug amounts Marshall sold on October 5, 2003,
and the drugs found in his residence the same day. Because the sale on October
5th was only 26.4 net grams of methamphetamine, an amount insufficient to meet
the 50 grams and more to which he pled guilty, Marshall’s plea necessarily
admitted an intent to distribute all the drugs involved in the events of October 5th
– those sold and those discovered in the search. In addition, Marshall later
admitted he sold the drugs on October 4th. Indeed, he not only concedes that
admission in his brief, but insists that amount is properly included in the
calculation of his offense level. 6
In summary, Marshall has admitted to two sales, a total of 17.4 grams
(actual), and possession with intent to distribute 19.6 grams (actual) for a total of
37 grams methamphetamine (actual), the amount used by the court in arriving at
the sentence imposed. As a result, there was no judicial fact-finding and no Sixth
Amendment violation.
Neither is there prejudicial non-constitutional Booker error. 7 “In
non-constitutional harmless error cases, the government bears the burden of
6
Defense counsel’s clever, but contrived, efforts to parley the Blakely and
Booker holdings to Marshall’s benefit are ultimately unavailing. Nevertheless, we
applaud the effort.
7
Non-constitutional Booker error is the product of the remedial opinion in
Booker, which severed the statutory provisions requiring mandatory application of
the sentencing guidelines in most cases. 125 S.Ct. at 764 (severing 18 U.S.C. §§
3553(b)(1) and 3742(e)).
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demonstrating, by a preponderance of the evidence, that the substantial rights of
the defendant were not affected.” United States v. Glover, 413 F.3d 1206, 1210
(10th Cir. 2005). Federal Rule of Criminal Procedure 52(a) states that “[a]ny
error, defect, irregularity, or variance that does not affect substantial rights must
be disregarded.” If the sentencing error does not affect the sentence that would
have been imposed by the district court, it does not affect substantial rights.
United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005).
Marshall contends his situation is similar to the defendant’s in Labastida-
Segura because there, as here, the district court imposed the minimum sentence.
Id. at 1142. In Labastida-Segura, we reasoned:
[T]o say that the district court would have imposed the same sentence
given the new legal landscape (even after consulting the Sentencing
Guidelines in an advisory capacity) places us in the zone of
speculation and conjecture--we simply do not know what the district
court would have done after hearing from the parties.
Id. at 1143. To be sure, Marshall was sentenced at the bottom of the applicable
guideline range. However, the government has shown that the district court
would not have changed Marshall’s sentence.
Marshall’s circumstances are more akin to the defendant’s position in
United States v. Ollson, 413 F.3d 1119 (10th Cir. 2005). In Ollson, the defendant
pled guilty and was sentenced under a mandatory guideline scheme. Id. at 1120.
At sentencing, the district court granted the government’s motion for a twenty
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percent reduction of sentence under USSG §5K1.1. Id. Because the district court
acknowledged its discretion to sentence Ollson more leniently, but declined to do
so, we found the error was harmless. Id. at 1121. We reasoned that, “unlike the
situation in Labastida-Segura, the district court had undoubted discretion to
reduce the sentence below what it imposed. If the court thought that [Ollson]
deserved an even lesser sentence, it could have departed further. Nothing in the
record overcomes the presumption that the court was aware of its discretion.” Id.
Similarly, in this case, after the district court granted Marshall’s motion to
apply the safety-valve provision, Marshall moved for a departure based on
“Imperfect Entrapment (Coercion and Duress), Self-Incrimination and Voluntary
Disclosure of a Crime, Substantial Cooperation, Susceptibility in Prison, Post
Offense Rehabilitation, and Totality of the Circumstance/Diminished Mental
Capacity.” (Appellant’s Appx. at 76-77.) At sentencing, the district court heard
lengthy and detailed arguments from counsel on each of these theories for
departure. After a short recess, the district court returned with its decision. It
began by noting its authority to entertain Marshall’s motion and request for relief
and continued by carefully addressing each of Marshall’s theories in turn. In no
event was the district court inclined to depart from the guidelines. 8 Thus, as in
8
We note that “notwithstanding Booker's invalidation of the mandatory
nature of the sentencing guidelines, district courts must still consult the
Guidelines and take them into account when sentencing. Thus, appellate review
continues to encompass review of the district court's interpretation and
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Ollson, the district court fully considered all the mitigating circumstances
surrounding Marshall’s offense and issued a sentence accordingly. Consequently,
we conclude the district court’s non-constitutional Booker error was harmless.
AFFIRMED.
application of the Guidelines.” United States v. Graham, 413 F.3d 1211, 1218
(10th Cir.), cert. denied, 2005 WL 2922646 (Nov. 7, 2005) (internal quotation
marks and citation omitted).
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