F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 24, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER IC A,
Plaintiff-Appellee,
v. No. 05-6312
(D.C. No. CR-01-181-02-M )
JASON TO DD DAVIS, (W .D. Okla.)
Defendant-Appellant.
U N ITED STA TES O F A M ER IC A,
Plaintiff-Appellee,
v. No. 05-6363
(D.C. No. CR-01-181-01-M )
M IC HAEL LAVONTE GAITHER, (W .D. Okla.)
Defendant-Appellant.
U N ITED STA TES O F A M ER IC A,
Plaintiff-Appellee,
v.
No. 06-6002
D O N TE ORM O N D WA RD , (D.C. No. CR-01-181-05-M )
(W .D. Okla.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, KELLY, and O’BRIEN, Circuit Judges.
Defendants Jason Todd Davis, M ichael Gaither, and Donte Ormond W ard
challenge the constitutionality of their sentences imposed on remand. In this
consolidated order and judgment, we take jurisdiction under 28 U.S.C. § 1291
and affirm.
I.
After a lengthy trial conducted in April and M ay 2002, a jury found
defendants guilty of numerous drug-related crimes in connection with a
conspiracy to distribute phencyclidine (PCP) in Oklahoma City. The district
court made factual findings related to defendants’ sentences under
a preponderance of the evidence standard, mandatorily applied the Sentencing
Guidelines, and sentenced defendants to multiple concurrent terms of life
imprisonment and lesser terms of imprisonment.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
-2-
In their initial appeals, defendants challenged their convictions and
sentences. United States v. Ward, 96 F. App’x 615 (10th Cir. 2004). W ith regard
to sentencing, defendants asserted that the district court improperly calculated
drug quantities for relevant-conduct purposes; wrongly decided that they were
leaders or organizers of the drug conspiracy, resulting in a four-level
enhancement of their sentences under U.S.S.G. § 3B1.1(a); and incorrectly
determined that they willfully obstructed justice by threatening and intimidating
witnesses, resulting in a two-level enhancement under U .S.S.G. § 3C1.1(a). Id. at
623-26. Additionally, Davis and Gaither claimed insufficient evidence to support
a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of firearms
in connection with a drug-trafficking offense, and Gaither contended that he
should not have received a two-level enhancement for reckless endangerment
during flight from police under U .S.S.G. § 3C1.2. Id. at 627-28. After reviewing
the factual basis of the drug-quantity findings and enhancements for clear error,
and also considering the constitutionality of the sentencing process, this court
affirmed the judgments of the district court. Id. at 631.
Defendants filed petitions for writs of certiorari with the Supreme Court.
The Court subsequently decided United States v. Booker, 543 U.S. 220 (2005),
which held that the Sixth Amendment requires “[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
-3-
be admitted by the defendant or proved to a jury beyond a reasonable doubt.”
Id. at 244. To rectify the constitutional infirmity presented by the mandatory
Guideline system, the Court fashioned a broad remedy, making the Guidelines
advisory rather than mandatory in all cases. Id. at 245. In the wake of its Booker
decision, the Supreme Court granted defendants’ petitions, vacated the judgm ents,
and remanded the cases to this court for further consideration. Gaither v. United
States, 543 U.S. 1102 (2005); Ward v. United States, 543 U.S. 1103 (2005); Davis
v. United States, 543 U.S. 1107 (2005). This court remanded the cases, directing
the district court to vacate the sentences and resentence defendants in accordance
with Booker. United States v. Ward, 143 F.App’x 88, 90 (10th Cir. 2005).
On remand, the district court denied defendants’ requests for de novo
sentencing hearings and declined to revisit its initial factual findings, which had
been reviewed and affirmed by this court. Using the same drug quantities and
applying the same enhancements that served as the basis of the reversed
sentences, the court again calculated defendants’ Guideline ranges under the
sentencing guidelines and reached the same guideline ranges–life sentences.
The court recognized the advisory nature of the Guidelines following Booker.
At defendants’ resentencing hearings, the district court specifically considered
the purposes of sentencing as expressed in the statutory sentencing factors.
See 18 U.S.C. § 3553(a). Particularizing its discussion to each defendant, the
court looked to the defendant’s age and criminal history, the significant drug
-4-
quantities attributable to the defendant, the firearms involved, and the role played
by the defendant. See id. §§ 3553(a)(1), (2)(A). And, for each defendant, the
district court determined that a sentence below the Guideline range of life was
“sufficient, but not greater than necessary,” to deter criminal conduct, “protect the
public from further crimes of the defendant,” and also “to provide the defendant
with educational or vocational training.” Id. § 3553(a)(2)(B), (C), (D). The court
sentenced W ard to a term of 460 months, to run concurrently with a lesser
sentence; Davis to a term of 480 months, to run concurrently with lesser
sentences; and Gaither to a term of 540 months, to run concurrently with lesser
sentences.
II.
Defendants now appeal the sentences imposed on remand. In reviewing
their sentences, “we first determine whether the court calculated the correct
Guidelines range; if so, we examine the sentence for reasonableness, using a
presumption of reasonableness for within-Guidelines sentences.” United States v.
Aguayo-Gonzalez, No. 05-2349, 2007 W L 10758, at *2 (10th Cir. Jan. 3, 2007).
Concerning the Guidelines calculation, defendant Gaither first argues that
he was entitled to a de novo determination on resentencing. There is no legal
authority for the proposition that a district court must “expand the scope of the
resentencing beyond the issue that resulted in the reversal and vacation of
sentence.” United States v. M oore, 83 F.3d 1231, 1235 (10th Cir. 1996). Rather,
-5-
the case law instructs that the court has the “inherent discretion to determine the
appropriate scope of the resentencing proceedings.” Id. M oreover, the district
court’s exercise of its discretion to utilize the facts found in the initial sentencing
proceeding was particularly appropriate in this instance. Earlier, this court had
affirmed the calculation of the Guideline range, based on the district court’s
calculations of drug amounts and applications of the enhancements for leadership
roles, obstruction of justice, possession of firearms, and reckless endangerment.
Next, all three defendants claim that the district court’s use of its earlier
calculations and imposition of enhancements violated their rights under the Sixth
Amendment and Due Process Clause. They assert that these types of factual
determinations must be found by a jury beyond a reasonable doubt. Under
Booker’s advisory regime, however, a district court may make Guideline
calculations using facts found by the judge. United States v. M agallanez,
408 F.3d 672, 684-85 (10th Cir.), cert. denied, 126 S. Ct. 468 (2005). “[S]uch
fact-finding is unconstitutional only when it operates to increase a defendant’s
sentence mandatorily.” United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir.
2005); see also M agallanez, 408 F.3d at 685 (“[W ]hen a district court makes a
determination of sentencing facts by a preponderance test under the now-advisory
Guidelines, it is not bound by jury determinations reached through application of
the more onerous reasonable doubt standard.”). W e discern no error in either the
-6-
district court’s consideration of its own drug-quantity findings or its application
of the enhancements.
Additionally, Defendant Ward asserts that, under Crawford v. Washington,
541 U.S. 36 (2004), the use of hearsay evidence in connection with the
obstruction enhancement violated his Sixth Amendment right to confront
witnesses against him. W e have previously rejected this argument. “[N]othing
in Crawford . . . requires us to depart from our precedent that constitutional
provisions regarding the Confrontation Clause are not required to be applied
during sentencing proceedings.” United States v. Bustamante, 454 F.3d 1200,
1202 (10th Cir. 2006) (quotation omitted). The court’s reliance on hearsay
statements in the sentencing process did not implicate W ard’s Confrontation
Clause rights.
Finally, with regard to the reasonableness of their sentences, all the
defendants argue that the district court erred by again applying the Guidelines in a
mandatory manner. A district court’s failure to consider the guidelines as
advisory in accordance with Booker presents what this court has termed a
non-constitutional error. United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32
(10th Cir.), cert. denied, 126 S. Ct. 495 (2005). The record on resentencing,
however, plainly refutes defendants’ contention. The district court clearly
complied with Booker by applying the Guidelines in an advisory fashion, as
Booker requires. Indeed, the district court exercised its afforded discretion to
-7-
depart downward from the Guideline indication of life sentences to relatively
lesser sentences ranging from 460 to 540 months.
III.
W e conclude that defendants’ sentences are constitutional, procedurally
correct, and substantively reasonable. The judgments of the district court are
A FFIRME D.
Entered for the Court
Deanell Reece Tacha
Chief Circuit Judge
-8-