United States v. Wilken

F IL E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 21, 2007
U N IT E D ST A T E S C O U R T O F A P PE A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 06-4042

TR AV IS L. WILK EN ,

Defendant-Appellant.

A ppeal from the U nited States D istrict C ourt
for the D istrict of U tah
(D .C . N o. 2:04-C R -695-D B )

Submitted on the briefs: *

Sharon Preston, Salt Lake City, Utah, for D efendant-Appellant.

Brett L. Tolman, United States Attorney, and Diana Hagan, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Before B R ISC O E , E B E L , and M cC O N N E L L , Circuit Judges.

E B E L, Circuit Judge.

*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G ). The case is therefore ordered submitted without oral argument.
 Defendant-Appellant Travis L. W ilken pled guilty to the crime of

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. M r. W ilken now appeals his sentence of 235 months’

imprisonment on grounds that the district court incorrectly calculated the United

States Sentencing Guidelines range (the “Guidelines range”) for his offense and

that the length of the sentence imposed was unreasonable.

W e first hold that M r. W ilken did not waive his right to appeal his

sentence, despite language to the contrary in his plea agreement, because

statements made by the district court during his plea colloquy created ambiguity

as to whether his waiver was knowing and voluntary. However, upon considering

the merits of M r. W ilken’s appeal, we conclude that he has failed to demonstrate

that his sentence was unreasonable and that any error in calculating the

Guidelines range for his offense w as harmless. W e therefore A FFIRM M r.

W ilken’s sentence.

I. BACKGROUND

A. Facts

According to uncontested facts from the presentence report (“PSR”)

prepared by the United States Probation Office in this case, a confidential

informant (“CI”) working for the Drug Enforcement Administration (“DEA”)

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arranged to sell a pound of methamphetamine to M r. W ilken on the evening of

September 27, 2004. Utah H ighway Patrol (“UHP”) troopers stopped M r.

W ilken’s pickup truck en route to the C I’s residence to consummate the sale. M r.

W ilken admits that, during this stop, he drove away from the troopers as they

were asking for his identification; however, he disputes the government’s

allegation that this flight occurred “at a high rate of speed with one of the

troopers still halfw ay in the driver’s door.” Later that evening, UHP troopers

located M r. W ilken walking down M ain Street in W oods Cross, Utah, and placed

him under arrest. The troopers found $11,200 in currency, a digital scale, and

15.9 grams of methamphetamine in his possession, and M r. W ilken subsequently

admitted that “at least some of that drug would have been distributed, sold, or

shared with friends and/or associates had it not been seized.”

B. T he Plea A greem ent and W aiver of A ppeal

M r. W ilken was charged with one count of possessing with intent to

distribute 50 grams or more of a mixture or substance containing a detectable

amount of methamphetamine, and one count of possessing with intent to distribute

5 grams or more of actual methamphetamine, both in violation of 21 U.S.C. §§

841(a)(1) and 846. Pursuant to a plea agreement reached with the government,

M r. W ilken pled guilty only to the latter count, and the government moved to

dismiss the former count at sentencing. The plea agreement also contained a

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statement of M r. W ilken’s right to appeal his sentence and a purported waiver of

that right:

8. I know there is no appellate review of any law ful sentence imposed
under a plea of guilty. I also know I may appeal the sentence imposed
upon me in this case only if the sentence is imposed in violation of law
or, in light of the factors listed in 18 U.S.C. § 3553(a), the sentence is
unreasonable. . . .

10. Fully understanding my limited right to appeal my sentence, as
explained above, and in consideration of the concessions and/or
commitments made by the United States in this plea agreem ent, I
knowingly, voluntarily and expressly waive my right to appeal any
sentence imposed upon m e, and the manner in which the sentence is
determined, on any of the grounds set forth in Title 18, United States
Code, Section 3742 or on any ground w hatever, except I do not waive
my right to appeal (1) a sentence above the maximum penalty provided
in the statute of conviction as set forth in paragraph 2 above.

At a change of plea hearing, the court ascertained that M r. W ilken had reviewed

the written plea agreement. However, in asking M r. W ilken whether he

understood the waiver of appeal contained in that agreement, the court described

the waiver in significantly different terms than appeared in the written agreement:

T HE C OURT : W hen you plead guilty you waive the right to appeal any
law ful sentence. So unless a sentence is imposed above the statutory
maximum, which in this case is life, or if it’s in violation of the factors
listed in the statute, you won’t have a right of appeal. Do you
understand that?
T HE W ITNESS [M r. W ilken]: I do.
T HE C OURT : Unless it falls into those other categories, you won’t be
able to appeal the sentence . . . .

(Emphasis added). Later during the same hearing, the court reiterated the same

point in more general terms:

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 T HE C OURT : Also you’re agreeing to waive any appeal or collateral
attacks as we discussed earlier and as outlined in this agreement; is that
true?
T HE W ITNESS : Yes.

(Emphasis added). The court then confirmed that M r. W ilken voluntarily agreed

to plead guilty and had been “able to consult with [his] attorney about the

decision to plead guilty and about this agreement,” accepted M r. W ilken’s guilty

plea, and directed him to sign the agreement.

C. The PSR

M r. W ilken’s PSR assigned him a base offense level of 32 pursuant to

U.S.S.G. § 2D1.1(c)(4), based on the quantity of methamphetamine and cash in

his possession at the time of his arrest. The PSR adjusted this upwards by 2

levels under U .S.S.G. § 3C1.2 for obstruction of justice, citing the government’s

allegation that, during the traffic stop prior to his arrest, M r. W ilken “sped off in

his vehicle with the UHP trooper standing half-way in the driver’s door” and

subsequently “engaged in a high speed pursuit with police.” The offense level

was further increased under the “career offender” provision at U.S.S.G. § 4B1.1,

which prescribes an offense level of 37 where the statutory maximum sentence for

the offense at issue is life imprisonment. 1 Finally, the PSR reduced the offense

1
Enhancement under the career offender provision of the Guidelines
requires, inter alia, that “the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.” U.S.S.G. §
4B1.1(a). Though it listed M r. Wilken’s prior convictions, including at least tw o
(continued...)

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level by 3 levels for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1,

producing a total offense level of 34. The PSR also noted that M r. W ilken’s

criminal history would normally be in category V based on his prior convictions;

however, because he met the criteria for a career offender, U.S.S.G. § 4B1.1(b)

categorically prescribed a criminal history category of VI.

Thus, based on a total offense level of 34 and a criminal history category of

VI, the Guideline range for M r. W ilken’s sentence as calculated in the PSR was

262 to 327 months. The PSR also listed the statutory limitations on his sentence,

which provide for a mandatory minimum sentence of 10 years and a maximum of

life imprisonment. 2

Prior to sentencing, M r. W ilken filed several written objections to the PSR

and requested a sentence below its calculated Guideline range. He first argued

that the PSR erred by counting two of his prior convictions, described in

paragraphs 38 and 39 of the PSR, separately for purposes of calculating his

1
(...continued)
felony convictions for controlled substance offenses, the PSR did not specify
upon which of these his career offender status was predicated.
2
Typically, a conviction under 21 U.S.C. § 841(a)(1) for possession with
intent to distribute 5 grams or more of methamphetamine carries a statutory
mandatory minimum sentence of five years and a maximum term of 40 years’
imprisonment. 21 U.S.C. § 841(b)(1)(B)(viii). However, the government here
filed an information pursuant to 21 U.S.C. § 851(a)(1), demonstrating that M r.
W ilken had previously been convicted for a felony drug offense, thus increasing
the statutory mandatory minimum to 10 years and the maximum term to life
imprisonment under § 841(b)(1)(B)(viii).

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criminal history score; according to M r. W ilken, these convictions resulted from

“related” cases (as defined in U.S.S.G. § 4A1.2), and therefore should have

counted as only one point on his criminal history score. M r. W ilken conceded,

however, that even so construed, his criminal history still qualified him for career

offender status under U .S.S.G. § 4B1.1.

Second, M r. W ilken argued that the PSR erred in applying the two-level

enhancem ent for reckless endangerment pursuant to U .S.S.G. § 3C1.2 because

there was insufficient proof of the government’s allegation that he drove away

from the traffic stop at high speed with an officer halfway inside the doorway of

his vehicle. W hile M r. W ilken admitted that he drove away in an attempt to

evade the police, he denied that he did so at high speed or that he endangered

officers or anyone else, conduct which he argued fails to warrant enhancement

under § 3C1.2. M r. W ilken claimed that he sought as evidence videotapes of the

traffic stop from the Highway Patrol vehicles involved, but that the government

informed him that the tapes had been lost.

M r. W ilken also argued that one of his prior convictions, a misdemeanor

conviction for possession of marijuana and drug paraphernalia, should not have

been counted in his criminal history score because he was not represented by

counsel during court proceedings and pled guilty “just to get the case behind

him.” Thus, he contended, a criminal history score which included two points for

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this conviction would “substantially over-represent[] the seriousness of [his]

criminal history.”

Finally, M r. W ilken argued that the PSR’s application of U.S.S.G. §

4B1.1’s career offender provision was inappropriate in his case because his prior

controlled substance offenses were relatively minor and mostly confined to a one-

year period of time. He also noted more generally that the United States

Sentencing Commission has itself been critical of the career offender provision’s

efficacy when applied to non-violent drug offenders. Thus, he requested that the

sentencing court decline to apply career offender status and instead impose a

sentence of ten years, the mandatory minimum statutory sentence available for his

present offense.

D. Sentencing

A t sentencing, M r. Wilken verbally reasserted his argument for a below-

Guidelines sentence of ten years, and the court acknowledged his written

objections to the PSR. The court accepted M r. W ilken’s argument that his

criminal history score overstated his actual criminal history slightly and

accordingly decreased his criminal history score by one category, but declined to

depart or vary from the remainder of the Guidelines calculations in the PSR:

I find that the obstruction of justice points are appropriately
calculated and considered when looking at what the guidelines suggest
the sentence should be considered to be, and I find that the presentence
report in all other respects is appropriately calculated. I do find that the

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 career offender calculations are appropriate in this case. I will
recognize that the criminal history overstates the defendant’s criminal
history slightly and I am going to ignore the guidelines requirement to
move the defendant to a category six. I will keep him in a category
five. That has the consequence only of moving him . . . to a criminal
history category of five rather than six, yielding a sentencing guideline
range of 235 to 293 months, which I find appropriate in this case.
The sentence will be at the low end of that range, 235 months in
custody of the Federal Bureau of Prisons . . . .

The court also agreed to recommend placement in an intensive drug rehabilitation

program, noting M r. W ilken’s claim that “methamphetamine is the root of all of

[his] problems.” Finally, the court reiterated its belief that the Guidelines’ career

offender provision was appropriately applied to M r. W ilken. “Under these

circumstances I find that you qualify as a career offender, not to mention you

have endangered the lives of your children for years now. I don’t see anything

yet that has given you enough incentive to stop a very, very dangerous practice.”

Judgment was entered on M r. W ilken’s sentence on February 6, 2006. M r.

W ilken filed a timely notice of appeal the following day.

II. D ISC U SSIO N

A. V alidity of M r. W ilken’s w aiver of appeal

W e have jurisdiction pursuant to 28 U.S.C. § 1291. See United States v.

Hahn, 359 F.3d 1315, 1322 (10th Cir. 2004) (en banc) (“[W ]e have statutory

subject matter jurisdiction under § 1291 over sentencing appeals even when the

defendant has waived his right to appeal in an enforceable plea agreement.”). W e

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begin by addressing the predicate issue of whether M r. W ilken waived his right to

appeal; if so, we must dismiss his appeal without reaching its merits, see id. at

1328.

O ur review of an appellate waiver is governed by the three-part inquiry we

articulated in Hahn: “(1) whether the disputed appeal falls within the scope of the

waiver of appellate rights; (2) whether the defendant knowingly and voluntarily

waived his appellate rights; and (3) whether enforcing the waiver would result in

a miscarriage of justice . . . .” Id. at 1325.

M r. W ilken’s primary argument against enforcement of his waiver

implicates both the first and second prongs of the Hahn analysis: he argues that,

although the language of his plea agreement contained a clear waiver of his right

to appeal, the scope of that waiver became ambiguous after the sentencing court’s

statements and therefore, at the time he pled guilty and signed the plea agreement,

any waiver of his right to appeal an unreasonable sentence was not knowing or

voluntary. W e agree that the sentencing court’s explanation of the waiver

differed substantially from that in the written plea agreement: while the written

waiver left M r. W ilken with the right to appeal only “a sentence above the

maximum penalty provided in the statute of conviction,” the court explained to

M r. W ilken that he also had the right to appeal a sentence imposed “in violation

of the factors listed in the statute,” thus significantly narrowing the scope of the

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waiver. 3 The question here is whether that statement, made during the plea

colloquy just prior to M r. W ilken’s signing the plea agreement and entering a plea

of guilty, introduced ambiguity so as to preclude our finding that the waiver of his

right to appeal an unreasonable sentence was knowing and voluntary.

W e have previously held that a sentencing court’s “statements made after

the entry of the appeal waiver and the district court’s acceptance of the guilty plea

cannot overcome the plain language of the appeal waiver” to create ambiguity

where none exists in the written plea agreement. United States v. Arevalo-

Jimenez, 372 F.3d 1204, 1206 (10th Cir. 2004) (emphasis added) (quoting Hahn,

359 F.3d at 1328 n.14); see also United States v. Fisher, 232 F.3d 301, 304 (2d

Cir. 2000) (“M ost of the circuits that have considered whether a district judge’s

post-sentence advice as to appellate rights renders ineffective an otherwise

enforceable waiver of such rights have ruled that the w aiver remains valid.”). M r.

W ilken’s argument, however, presents us with a different question, one we have

3
It is unclear precisely which statute the court intended to reference. M r.
W ilken asserts that the court’s statement “can only be construed to mean 18
U.S.C. § 3742,” which allows for appeal of all “unreasonable sentences, whether
they fall within or outside the advisory Guidelines range.” United States v.
Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). A colorable argument
could also be made, however, that the court meant to refer to the sentencing
factors enumerated at 18 U.S.C. § 3553(a). W e need not concern ourselves w ith
this distinction, since M r. W ilken’s arguments on appeal concern the calculation
and reasonableness of his sentence and are therefore cognizable under either
interpretation.

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never squarely faced: whether the sentencing court’s mischaracterization of an

appellate waiver during a plea colloquy, prior to signing of the plea agreement or

entry of a guilty plea, can create a material ambiguity as to an otherwise

unambiguous waiver in the plea agreement. See United States v. Salazar, 188

Fed. Appx. 787, 790 n.3 (10th Cir. 2006) (unpublished) (noting that the instant

issue “appears to be an unsettled question”), cert. denied, 127 S. Ct. 1017 (2007).

Our precedent, though not addressing this question directly, provides

guidance by directing this court to look “primarily to two factors” in determining

whether an appellate waiver was made knowingly and voluntarily: (1) the

language of the plea agreement, and (2) the plea colloquy required by Federal

Rule of Criminal Procedure 11. 4 United States v. Sandoval, 477 F.3d 1204, 1207

(10th Cir. 2007); Hahn, 359 F.3d at 1325. W e have thus clearly contemplated an

explanatory role for the plea colloquy, although our prior opinions have addressed

this role in the context of clarifying the particulars of a defendant’s appellate

waiver, rather than obfuscating them. See United States v. Chavez-Salais, 337

F.3d 1170, 1173 (10th Cir. 2003) (holding that the plea colloquy is a “way in

4
The relevant portion of Rule 11 requires that the sentencing court, prior to
acceptance of a guilty plea, address the defendant personally to “inform the
defendant of, and determine that the defendant understands, . . . the terms of any
plea-agreement provision waiving the right to appeal or to collaterally attack the
sentence.” Fed. R. Crim. P. 11(b)(1)(N). In addition, the court must also
“determine that the plea is voluntary and did not result from force, threats, or
promises (other than promises in a plea agreement).” Fed. R. Crim. P. 11(b)(2).

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which the content of a defendant’s w aiver of appeal rights can be made known to

him”).

Nevertheless, logic indicates that if w e may rely on the sentencing court’s

statements to eliminate ambiguity prior to accepting a waiver of appellate rights,

we must also be prepared to recognize the power of such statements to achieve

the opposite effect. If it is reasonable to rely upon the court’s words for

clarification, then we cannot expect a defendant to distinguish and disregard those

statements of the court that deviate from the language of a particular provision in

a lengthy plea agreement — especially where, as here, neither the government nor

defense counsel apparently noticed the error at the time. Assuming that M r.

W ilken understood the court’s statements as broadening his right of appeal under

the waiver — an understanding the court’s language clearly supports — he

certainly could not be faulted for relying upon the court’s explanation, rather than

his own understanding, as the definitive construction of the agreement he would

almost immediately sign.

This immediacy, without objection or time to consult with counsel, is a

further factor supporting our conclusion that the sentencing court’s statements

created ambiguity in M r. W ilken’s w aiver. Had either party’s counsel objected to

the court’s statement or sought clarification, then the court could have amended

its statement and resolved any ambiguity. Alternatively, if an adequate interval

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had occurred after the court’s statements but prior to the entry of a guilty plea or

signing of the agreement during which M r. W ilken could have consulted with

counsel regarding any confusion over the scope of the appellate waiver, then

arguably counsel would have cleared up any ambiguity. But here, neither

clarification nor an opportunity therefor was offered between the court’s

erroneous statements and M r. W ilken’s signing of the plea agreement. 5

W e are thus left with ambiguity existing at the time M r. W ilken signed his

plea agreement and pled guilty: the written agreement enumerates a broad waiver

of his appellate rights, but the court’s statements during the plea colloquy

describe a much narrow er waiver. Under such uncertain circumstances, we must

construe the waiver narrowly, “according to . . . what the defendant reasonably

understood when he entered his plea.” Chavez-Salais, 337 F3d at 1172; see id. at

1173 (“Like most waivers, a defendant’s waiver of his right to appeal . . . is to be

construed narrowly.”); Hahn, 359 F.3d at 1325 (“In determining a waiver’s scope,

we will strictly construe appeal waivers and any ambiguities in these agreements

5
The sentencing court did inquire, prior to M r. W ilken’s signing of the plea
agreement and his guilty plea, whether he had “been able to consult with [his]
attorney about the decision to plead guilty and about this [plea] agreement,” to
which M r. W ilken responded “Yes, I have.” This exchange failed to cure the
ambiguity, however, because it indicates only that M r. W ilken was able to consult
his attorney prior to the court’s erroneous description of the appellate waiver; it
does not ascertain that M r. W ilken had the opportunity to receive any advice after
the ambiguity arose, or that he understood that he would be bound by the written
agreement rather than the court’s verbal interpretation of it.

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will be read against the Government and in favor of a defendant’s appellate

rights.”). As a result, we cannot conclude that M r. W ilken’s w aiver of his right to

appeal an allegedly unreasonable sentence was knowing and voluntary, and we

therefore hold that M r. W ilken did not waive his right to bring the instant appeal. 6

See Chavez-Salais, 337 F.3d at 1174. W e therefore proceed to consider the merits

of his appeal.

B. M erits

1. C alculation of the G uidelines range including the reckless
endangerm ent p rovision at U .S.S.G . § 3C 1.2 7

In determining whether the district court correctly calculated the applicable

Guidelines range, “we review factual findings for clear error and legal

determinations de novo.” U nited States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.

2006) (per curiam). Even where we find an error in calculating the Guidelines

6
Because we cannot conclude that M r. W ilken knowingly and voluntarily
waived his right to bring this appeal and thus we decline to enforce the waiver on
this ground, we need not address his alternative argument that enforcement of the
waiver w ould result in a miscarriage of justice.
7
The PSR referred to the adjustment under § 3C1.2 as an “Adjustment for
Obstruction of Justice,” and both M r. W ilken and the court adopted this
nomenclature when referring to this adjustment. Section 3C1.2, however, is
entitled “Reckless Endangerment D uring Flight”; it is the preceding provision, §
3C1.1, which is entitled “Obstructing or Impeding the Administration of Justice.”
W e therefore diverge from the district court and refer to the § 3C1.2 adjustment
as alleging reckless endangerment, rather than obstruction of justice.

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range, however, we need not vacate and remand the sentence if the error was

harmless. See United States v. Graham, 466 F.3d 1234, 1239-40 (10th Cir. 2006).

M r. W ilken challenges only one aspect of the district court’s calculation of

the Guideline range for his sentence: its application of the reckless endangerment

adjustment at U.S.S.G. § 3C1.2, based on the government’s allegation that he

drove away from a traffic stop that preceded his arrest at high speed, “with [a]

UHP trooper standing half-way in the driver’s door” of his vehicle. He argues

that the court erred in approving the PSR’s application of the two-level

enhancement to his base offense level over his objection, because the government

failed to produce evidence of the conduct supporting it. 8

M r. W ilken appears to have a valid point. “A t sentencing, the district court

may rely on facts stated in the presentence report unless the defendant objected to

them. W hen a defendant objects to a fact in a presentence report, the government

must prove that fact at a sentencing hearing by a preponderance of the evidence.”

United States v. Keifer, 198 F.3d 798, 800 (10th Cir. 1999). Here, M r. W ilken

objected to the PSR’s application of the reckless endangerment enhancement,

admitting that he drove away during the traffic stop but “den[ying] that one of the

8
U.S.S.G. § 3C1.2 provides for a two-level increase in a defendant’s
offense level calculation “[i]f the defendant recklessly created a substantial risk
of death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer.”

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officers was half-way in his vehicle when he drove away or that he engaged in a

high-speed chase — and thus den[ying] that his conduct created a substantial risk

of serious bodily injury to the officers or anyone else.” M r. W ilken claims he

requested videotape evidence from the patrol cars involved in the stop, but the

government informed him that “the tapes were apparently lost by the police

agency.” The record contains no evidence offered by the government to

overcome this objection, and M r. W ilken’s admission merely that he fled the

traffic stop is not, in and of itself, sufficient to support enhancement under §

3C1.2. United States v. Conley, 131 F.3d 1387, 1390 (10th Cir. 1997) (“Not

every flight from a crime scene . . . will constitute reckless endangerment under §

3C1.2.”). Thus, it appears that the district court erred by simply adopting the

PSR ’s application of § 3C1.2 over M r. W ilken’s objection. See United States v.

Farnsw orth, 92 F.3d 1001, 1011 (10th Cir. 1996) (“W e repeatedly have held that a

district court may not satisfy its obligation [to make a finding as to controverted

factual allegations regarding sentencing] by simply adopting the presentence

report as its finding.”).

However, as it turned out, the § 3C1.2 enhancement had no effect on M r.

W ilken’s sentence. Once the court determined, based on facts unrelated to those

underlying the reckless endangerment enhancement, that M r. W ilken qualified as

a career offender, its previous offense level calculations became irrelevant; §

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4B1.1 categorically prescribes an offense level of 37 and a criminal history

category of VI to career offenders convicted of an offense carrying a maximum

statutory sentence of life imprisonment.

M r. W ilken does not argue that the district court substantively erred in its

factual findings or legal determination related to his qualification as a career

offender under § 4B1.1. Indeed, he concedes that his criminal history contained

the two previous controlled substance felony convictions necessary to trigger §

4B1.1, and therefore that the career offender enhancement “was properly applied

in a technical sense” by the district court. Thus, because § 4B1.1 controlled the

Guidelines range for his sentence, any error in the district court’s application of §

3C1.2 was harmless. See United States v. M ontgomery, 439 F.3d 1260, 1263

(10th Cir. 2006) (“Harmless error is that which did not affect the district court’s

selection of the sentence imposed.” (quotation omitted)); United States v.

Sherwin, 271 F.3d 1231, 1235-36 (10th Cir. 2001) (holding that it was

unnecessary for this court to address the district court’s erroneous application of a

§ 3C1.2 enhancement because on remand, the sentence imposed would not

change). 9

9
M r. W ilken argues that, even if the error had no effect on his sentence, it
is not harmless because it will affect the security designation assigned to him by
the B ureau of Prisons. Precedent is clear, however, that we determine w hether a
sentencing error is harmless with reference only to the sentence imposed.
W illiams v. United States, 503 U.S. 193, 202-03 (1992) (“[R]emand is required
(continued...)

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 W e therefore decline to vacate or remand M r. W ilken’s sentence based on

error in the calculation of the appropriate Guidelines range.

2. R easonableness of the sentence

Having found no reversible error in the district court’s calculation of the

Guidelines range, we review the resulting sentence for “reasonableness.” K ristl,

437 F.3d at 1053. A sentence imposed within the properly calculated Guidelines

range is accorded a rebuttable presumption of reasonableness, which is “a

deferential standard that either the defendant or the government may rebut by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” Id. at 1054; see Rita v. United States, 127 S. Ct.

2456, 2462 (2007) (holding that “a court of appeals may apply a presumption of

reasonableness to a district court sentence that reflects a proper application of the

Sentencing Guidelines”). M r. W ilken argues that the district court’s imposition

9
(...continued)
only if the sentence was imposed as a result of an incorrect application of the
Guidelines.” (quotation omitted, emphasis added)); M ontgomery, 439 F.3d at
1263 (“Harmless error is that which did not affect the district court’s selection of
the sentence imposed.” (quotation omitted)); United States v. M arshall, 432 F.3d
1157, 1162 (10th Cir. 2005) (“If the sentencing error does not affect the sentence
that would have been imposed by the district court, it does not affect substantial
rights.”); see also United States v. Brown, 221 F.3d 1336, 2000 W L 876382 at
*14 (6th Cir. 2000) (unpublished) (holding that errors in a PSR’s Guideline
calculations that do not affect the defendant’s sentence are harmless even if they
affect the defendant’s Bureau of Prisons classification).

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of a 235-month sentence based, in part, on application of the career offender

enhancement, U.S.S.G. § 4B1.1, was unreasonable.

a. Presumption of reasonableness

As an initial matter regarding our standard of review, we are faced with the

vexatious question of whether the presumption of reasonableness accorded to a

within-Guidelines sentence applies in this case. The Guidelines range as

calculated in the PSR, based on M r. W ilken’s status as a career offender, was 262

to 327 months’ imprisonment. However, at sentencing, the court agreed with M r.

W ilken that his criminal history score “overstates [his] criminal history slightly”

and therefore, rather than applying criminal history category VI as prescribed by §

4B1.1, applied category V. Based on this change, the court recalculated M r.

W ilken’s sentencing range to be 235 to 293 months and imposed a sentence at the

bottom of this revised range.

The court, however, did not state the basis for its divergence from the

criminal history category set out in § 4B1.1. The court might have intended to

depart from the Guidelines range based on U.S.S.G. § 4A1.3(b), which provides

for a downward departure of one criminal history category “[i]f reliable

information indicates that the defendant’s criminal history category substantially

over-represents the seriousness of the defendant’s criminal history . . . .”

Alternatively, the court might have meant to grant a variance based on the

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sentencing factors at 18 U.S.C. § 3553(a), which require the sentencing court to

consider “the history and characteristics of the defendant” and “the need for the

sentence imposed . . . to afford adequate deterrence to criminal conduct” and “to

protect the public from further crimes of the defendant.” A ccordingly, we are

unable to determine whether the court’s divergence from the sentences prescribed

by § 4B1.1 represents a “departure” or a “variance” from the Guideline range.

See United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir. 2007) (“[W]hen

a court reaches a sentence above or below the recommended Guidelines range

through application of Chapters Four or Five of the Sentencing Guidelines, the

resulting increase or decrease is referred to as a ‘departure.’ W hen a court

enhances or detracts from the recommended range through application of §

3553(a) factors, however, the increase or decrease is called a ‘variance.’”).

This distinction is important because it is potentially determinative of our

standard of review. As previously stated, we apply a rebuttable presumption of

reasonableness when review ing a sentence that “falls within the properly

calculated Guidelines range.” Kristl, 437 F.3d at 1053. It is well settled that

when a district court varies from the Guidelines range based only on non-

Guideline § 3553(a) factors, the resulting sentence lies outside of the “properly

calculated Guidelines range” and therefore is not presumed to be reasonable. See,

e.g., United States v. Valtierra-Rojas, 468 F.3d 1235, 1238-39 (10th Cir. 2006)

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(holding that a sentence based on a variance from the Guidelines range, invoking

the § 3553(a) factors, is not entitled to a presumption of reasonableness, though it

is not presumptively unreasonable), cert. denied, 127 S. Ct. 2935 (2007).

However, it is less clear whether a sentence based on a departure that is

itself recognized under the Guidelines is considered a within-Guidelines sentence

for purpose of applying a presumption of reasonableness on review. Fortunately,

this determination is not necessary to our resolution of this case, for the result is

the same either way; even without the benefit of a presumption of reasonableness,

we nevertheless conclude that M r. W ilken’s sentence is reasonable. W e therefore

reserve for another day the question of w hether a presumption of reasonableness

applies to a sentence that departs, in either direction, from the applicable

Guideline range under § 4B1.1.

b. Unreasonableness based on the efficacy of § 4B1.1

In attempting to show that his sentence was unreasonable, M r. W ilken

argues that the United States Sentencing Commission, the body responsible for

creating the Sentencing Guidelines, “has acknowledged that the career offender

provision, as it applies to drug trafficking offenses, does not effectively serve the

sentencing goals” of § 3553(a). The Sentencing Commission, in a 2004 report,

noted that offenders who qualified for § 4B1.1’s career offender enhancement

based only upon prior drug offenses displayed lower recidivism rates than those

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career offenders who were so classified based on prior crimes of violence, and

concluded that the use of prior drug offenses to qualify offenders under § 4B1.1

had “unwarranted adverse impacts on minority groups without clearly advancing a

purpose of sentencing.” U. S. Sentencing Commission, Fifteen Years of

Guidelines Sentencing: An Assessment of How W ell the Federal Criminal Justice

System is Achieving the Goals of Sentencing Reform at 134 (2004), available at

http://www.ussc.gov/15_year/15_year_study_full.pdf [hereinafter “Sentencing

Commission Report”].

Be that as it may, the fact remains that Congress has not yet been persuaded

to remove prior drug offenses as qualifiers for the career offender provision, and

“a sentence is not rendered unreasonable merely because of a district court’s

refusal to deviate from the advisory guideline range” based on disagreements w ith

the policies underlying a particular Guideline provision. United States v.

M cCullough, 457 F.3d 1150, 1171 (10th Cir. 2006), cert. denied, 127 S. Ct. 988

(2007). Indeed, in M cCullough we considered and rejected a very similar

argument regarding the disparity in the Guidelines between crack cocaine and

powder cocaine — a disparity, we note, of which the Sentencing Commission

expressed similar disapproval in the same report cited by M r. W ilken. See

Sentencing Commission Report at 131-32 (noting that “the Commission has

repeatedly recommended that the quantity thresholds for crack cocaine be revised

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upward,” and that this change “would dramatically improve the fairness of the

federal sentencing system”). In M cCullough, we thus held that a district court

does not err by refusing to depart or vary downw ard based on the Guidelines’

disparate treatment of crack and powder cocaine. 457 F.3d at 1171.

The same reasoning applies to M r. W ilken’s disagreement with the policy

underlying § 4B1.1 in this case. W hile there may exist cogent arguments against

the inclusion of prior drug offenses under § 4B1.1, a district court does not err by

declining to depart or vary from a within-Guidelines sentence on this ground. See

United States v. Pruitt, 487 F.3d 1298, 1316-17 (10th Cir. 2007) (M cConnell, J.

concurring) (discussing the perceived inequities of § 4B1.1 as applied based only

on prior drug offenses, but recognizing that application of § 4B1.1 in such a

context is “reasonable” under Tenth Circuit precedent). W e therefore cannot hold

his sentence unreasonable based on such a broad policy disagreement.

c. Unreasonableness based on M r. W ilken’s criminal
history

M r. W ilken also argues, based more specifically on the facts of his case,

that his criminal history does not warrant the sentence enhancement resulting

from his being labeled a career offender under § 4B1.1. He notes that he

proceeded pro se in pleading guilty to a misdemeanor charge of possession of

marijuana and argues that this prior conviction should therefore not have

contributed to his criminal history score. He also contends that, although the PSR

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listed three felony convictions for drug offenses in his criminal history, two of

these convictions occurred in “related cases” and should therefore be treated as a

single sentence; thus, he “only had two previous offenses that qualified him for

application of” § 4B1.1.

It is not clear that M r. W ilken’s characterization of his prior convictions as

“related” is accurate, as the record does not demonstrate that any of the prior

convictions listed in the PSR occurred on the same occasion, were part of a single

comm on scheme or plan, or were consolidated for trial or sentencing. See

U.S.S.G. § 4B1.2(c) (defining the “two prior felony convictions” required for

career offender status to require that the convictions be counted separately under

§ 4A1.1’s criminal history provisions); U.S.S.G. § 4A1.2, cmt. 3 (defining

“related cases,” which are not counted separately for purposes of criminal history,

as those resulting “from offenses that (1) occurred on the same occasion, (2) w ere

part of a single common scheme or plan, or (3) were consolidated for trial or

sentencing”).

In any case, even if we were to adopt M r. W ilken’s version of his criminal

history, the two prior felony convictions for drug offenses that he accepts are still

sufficient to support the district court’s application of the career offender

enhancement. See U.S.S.G. § 4B1.1(a) (requiring a career offender to have, inter

alia, “at least two prior felony convictions of either a crime of violence or a

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controlled substance offense”). As M r W ilken concedes that this represents the

“minimum number of offenses triggering the provision,” we fail to see how his

characterization of his criminal history in any way indicates that application of §

4B1.1 would be unreasonable.

Further undercutting M r. W ilken’s argument is the fact that the district

court, at the sentencing hearing, “recognize[d] that the [PSR’s] criminal history

overstates [M r. W ilken’s] criminal history slightly,” and therefore granted a

downward adjustment from § 4B1.1’s provision of criminal history category VI,

opting instead to keep M r. W ilken in category V. M r. W ilken thus received a

sentence that took into account the relative lack of severity of his criminal

history. 1 0

W e therefore hold that M r. W ilken’s sentence is not unreasonable based on

his criminal history and his qualification as a career offender under § 4B1.1.

d. The district court’s explanation of the sentence

Finally, M r. W ilken briefly brings what we construe as a procedural

challenge to the reasonableness of his sentence, arguing that the district court’s

10
W e disagree with M r. W ilken’s contention that the court’s decision to
reduce his criminal history score did not take into account his argument that
certain of his prior offenses were related. The court’s explanation indicated that
it based the adjustment on over-representation of M r. W ilken’s criminal history
generally, not on any particular conviction therein. W e therefore understand the
court to have heard M r. W ilken’s arguments regarding his criminal history and
addressed them with the dow nw ard adjustment from category VI to category V .

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stated reason for applying § 4B1.1’s career offender provision and imposing a

235-month sentence was not supported by the record. Because M r. W ilken did

not object on this ground at the sentencing hearing, we review this claim only for

plain error. See United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir.

2006), cert. denied, 127 S. Ct. 3043 (2007). “Plain error occurs where 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.” Id. at

1222 (quotation omitted).

At the end of the sentencing hearing, after pronouncing sentence, the court

stated:

Under these circumstances I find that you qualify as a career offender,
not to mention you have endangered the lives of your children for years
now. I don’t see anything that has given you enough incentive to stop
a very, very dangerous practice.

M r. W ilken focuses on the statement that he “endangered the lives of [his]

children,” alleging that this statement is unsupported by the record. To the

contrary, we find ample support in the record for this statement. The PSR

describes a charge pending against M r. W ilken at the time of his trial indicating

that his two sons, aged 6 and 8, were found during a raid of his home along with

methamphetamine, drug paraphernalia, and chemicals used to manufacture

methamphetamine. At the sentencing hearing, M r. W ilken’s attorney conceded

that due to his client’s use of methamphetamine, “his judgment was totally

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w recked and his children’s lives [were] wrecked.” Indeed, during his own

statements at the sentencing hearing, M r. W ilken indicated that he was aware of

the effects of his drug abuse on his children: “I have never had any intention of

hurting anybody or endangering my kids’ lives. I guess I just didn’t realize the

power the drugs had over me. . . . There is [sic] a lot of things I w ould do over if

I could.”

W e also do not read the court’s statement as providing endangerment of his

children as the sole reason for the sentence imposed. The court stated, “I don’t

see anything that has given you enough incentive to stop a very, very dangerous

practice,” emphasizing the recurring nature of M r. W ilken’s drug abuse and

troubles with the law and noting that none of his previous sentences had

apparently been sufficient to deter his behavior. This reasoning is well supported

by M r. W ilken’s criminal history and is itself sufficient to explain the imposition

of career offender status. See, e.g., Pruitt, 487 F.3d at 1310 (“W hen a defendant

faces a sentence for her fourth drug-related conviction, it is reasonable to infer

that she is not easily deterred from engaging in unlawful conduct.”).

W e therefore do not find the district court’s statement of its reasons for

imposing a 235-month sentence to constitute error, let alone plain error.

III. C O N C L U SIO N

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 For the foregoing reasons, we cannot conclude that M r. W ilken’s waiver of

his appellate rights w as knowing and voluntary and we therefore decline to

enforce that waiver. On the merits of his appeal, we agree that the district court

initially miscalculated M r. W ilken’s criminal history by applying an enhancement

for reckless endangerment pursuant to § 3C1.2 over his objection, without

evidence of conduct sufficient to support this enhancement; however, we

conclude that this error was harmless in light of the court’s concededly proper

application of the career offender provision at § 4B1.1, which ameliorated the

effects of the previous error. Finally, we hold that a 235-month sentence was

reasonable given M r. W ilken’s criminal history.

Accordingly, M r. W ilken’s sentence is AFFIRM ED.

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