United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3137
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Robert Louis Salter, Jr., *
*
Defendant - Appellant. *
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Submitted: June 20, 2005
Filed: August 10, 2005
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Before MURPHY, BYE, and SMITH, Circuit Judges.
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BYE, Circuit Judge.
Robert Louis Salter, Jr. (Salter) appeals the district court's1 151-month sentence
following his convictions for possessing a machine gun and failure to appear. We
affirm.
1
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
I
On September 13, 2002, law enforcement responded to a reported shooting at
Salter's residence involving Salter and his son, R.J. Salter. A five-hour standoff
ensued between R.J. and police during which R.J. barricaded himself in his father's
"gun room." Following the standoff, police searched Salter's residence and
discovered several illegal weapons, including a H&K, Model 94, machine gun.
Salter was indicted on, among other charges, possessing a machine gun in
violation of 18 U.S.C. §§ 922(o)(1) and 924(a)(2). On May 13, 2003, he entered a
conditional plea of guilty to possessing the machine gun. On September 29, 2003,
Salter failed to appear at his scheduled sentencing and a warrant was issued for his
arrest. On January 7, 2004, he was indicted on one count of failure to appear in
violation of 18 U.S.C. §§ 3146(a)(1) and 3146(b)(A)(ii). On February 1, 2004, Salter
was apprehended and found in possession of an AR-15 rifle and .22-caliber handgun
equipped with a silencer.
Salter was tried and convicted of failure to appear. The district court sentenced
him to 120 months imprisonment for possession of the machine gun and thirty-one
months imprisonment for failure to appear, with the sentences to run consecutively.2
2
Salter's base offense level, after grouping the offenses under United States
Sentencing Guidelines §§ 3D1.2(c) and 2J1.6, Application Note 3, was twenty. The
district court added a four-level enhancement under § 2K2.1(b)(1)(B) because the
offenses involved fourteen firearms, including a silencer, and two of the firearms
were possessed after Salter was convicted of possessing a machine gun. Two
additional levels were added under § 2K2.1(b)(3) for possessing a destructive device,
namely a grenade launcher. Next, the district court added two levels under §
2K2.1(b)(4) for possessing firearms with obliterated serial numbers. Finally, the
district court added two levels for role in the offense under § 3B1.1(c) and two levels
for obstruction of justice under § 3C1.1. Salter's adjusted offense level was thirty-two
with a sentencing range of 121 to 151 months.
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The district court also imposed a three-year term of supervised release. At
sentencing, the district court took note of Blakely v. Washington, 542 U.S. 296
(2004), and held the sentencing guidelines were advisory.
On appeal, Salter argues his sentences were imposed in violation of Blakely
and United States v. Booker, 125 S. Ct. 738 (2005), because the district court
imposed the various enhancements based upon judge-found facts. Salter further
argues the sentences violated his right to due process because the enhancements were
imposed in violation of the plea agreement. He contends the government breached
the plea agreement because the district court was required to treat the guidelines as
mandatory and impose a sentence without applying any enhancements based on
judge-found facts. Finally, Salter argues the three-year term of supervised release
violated the Sixth Amendment because it too was based on judge-found facts.
II
Salter first argues the district court's imposition of the various sentencing
enhancements based on judge-found facts renders his sentence unconstitutional.
Booker held the United States Sentencing Guidelines scheme ran afoul of the
Sixth Amendment insofar as it required judges, based on judge-found facts, to impose
more severe sentences than could have been imposed based solely on facts found by
the jury or admitted by the defendant. Id. at 750. To remedy the Sixth Amendment
problem, the Supreme Court declared the entirety of the guidelines "effectively
advisory," but instructed district courts to "consult those Guidelines and take them
into account when sentencing." Id. at 757, 767. Following Booker, we continue to
review the district court's application of the guidelines de novo and its findings of fact
for clear error. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).
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Applying these standards, we find no error in the district court's sentence.
Salter does not contend the district court's application of the specific enhancements
or its findings of fact were erroneous. Rather, he insists Blakely and Booker prohibit
district courts from applying sentencing enhancements based on judge-found facts.
A correct reading of Booker demonstrates the futility of Salter's argument. Because
the district court calculated the sentencing range properly and treated the guidelines
as advisory, we conclude there was no Booker error. See United States v. Pirani, 406
F.3d 543, 551 (8th Cir. 2005) (en banc) (holding Booker error is avoided when the
district court calculates the proper guidelines sentencing range, treats the guidelines
as advisory, and imposes a reasonable sentence).
Salter next contends he was deprived of due process because the plea
agreement, entered into after Blakely but before Booker, anticipated he would be
sentenced in accordance with the sentencing guidelines as they existed at the time of
the agreement. According to Salter, he agreed to be sentenced under a mandatory
guidelines system which prohibited sentencing enhancements based on judge-found
facts, and the government's acquiescence to the district court's use of an advisory
system constitutes a breach of the plea agreement.
Plea agreements are contractual in nature and are interpreted according to
general contract principles. United States v. Thompson, 403 F.3d 1037, 1039 (8th
Cir. 2005). We review their interpretation and enforcement de novo. Id. Here, the
plea agreement did not guarantee Salter would be sentenced under a mandatory
guidelines system. Rather, it provided Salter would be sentenced in accordance with
the sentencing guidelines. It is clear the district court properly calculated the
guideline sentencing range and correctly anticipated the guidelines would be advisory
instead of mandatory. Thus, Salter received the bargained for benefit. Moreover,
"the development in the law announced by Booker subsequent to [Salter's] guilty plea
does not invalidate his plea." United States v. Parsons, 408 F.3d 519, 521 (8th Cir.
2005) (citing Brady v. United States, 397 U.S. 742, 757 (1970)).
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Finally, Salter contends the district court's imposition of a three-year term of
supervised release was unconstitutional. Again, we disagree. Although the Supreme
Court held the Sentencing Reform Act unconstitutional in Booker, 125 S. Ct. at 758,
it did not discard the guidelines in their entirety. Rather, the Court excised only those
provisions making application of the guidelines mandatory. Id. at 764. "Among the
remaining provisions of the Sentencing Reform Act that the Court recognized as
constitutionally valid was the supervised release statute, 18 U.S.C. § 3583." United
States v. Coleman, 404 F.3d 1103, 1104 (8th Cir. 2005). Accordingly, it was not
improper for the district court to impose a period of supervised release.
III
The judgment of the district court is affirmed.
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