United States v. Kimberly Shea Tebrugge

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ MAY 17, 2005
THOMAS K. KAHN
No. 04-14726 CLERK
Non-Argument Calendar
________________________

D.C. Docket No. 04-00008-CR-4-RH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KIMBERLY SHEA TEBRUGGE,
Defendant-Appellant.

__________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(May 17, 2005)

Before BIRCH, BARKETT and FAY, Circuit Judges.

PER CURIAM:
 Kimberly Shea Tebrugge directly appeals her 12-month and 1-day sentence

for knowingly concealing and possessing stolen firearms, in violation of 18 U.S.C.

§ 922(j) and 924(a)(2). Tebrugge argues on appeal that the district court

(1) clearly erred in not adjusting her guideline offense level based on minor role,

pursuant to U.S.S.G. § 3B1.1(b); (2) violated her Fifth Amendment right not to

incriminate herself at sentencing; and (3) violated her Sixth Amendment right to a

jury trial in considering the federal guidelines in sentencing her, in light of

Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),

and United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___

(2005). For the reasons set forth more fully below, we affirm Tebrugge’s

sentence.

A federal grand jury returned an indictment, charging Tebrugge and her

husband, Kevin R. Tebrugge, with the above-referenced offense and listing the

firearms that the Tebrugges allegedly possessed and concealed. Kimberly

Tebrugge subsequently entered into a plea agreement, whereby she agreed to plead

guilty to this offense in exchange for the government agreeing to dismiss the

remaining count in her indictment.

As part of this plea agreement, Tebrugge conceded that the government

could prove the following facts beyond a reasonable doubt. In November 2002,

2
Jack Neely, Sr., provided to the Tebrugges his furnished home in Tallahassee,

Florida, which contained a locked gun safe. After Kimberly Tebrugge found the

combination to this safe, she and Kevin Tebrugge opened it. In June 2003, the

Tebrugges moved out of this home, at which time they stole the 22 firearms—the

same firearms listed in their indictment—from the gun safe in the home. The

Tebrugges then concealed these firearms in a storage facility in Tallahassee.

Approximately five days later, the Tebrugges removed the firearms from the

storage facility; transported them to Wilkes County, North Carolina; and left them

with Alan Brown, one of Kevin Tebrugge’s former colleagues. All of these stolen

firearms were manufactured outside the state of Florida and, thus, had been

shipped or transported in interstate commerce before they were stolen.1

During Tebrugge’s plea colloquy, she verified that she had read and signed

the plea agreement, and that the facts contained within it were true. She clarified,

however, that (1) after she opened the safe, her husband was the one who had

removed the firearms; and (2) she had committed the acts on her husband’s

instruction because she had been scared of what, otherwise, would have happened.

After Tebrugge pled guilty, the court found that (1) the facts were sufficient to

1
In addition to these facts, the parties agreed that they were reserving the right to
appeal any sentence that the court imposed.
3
support her plea, (2) Tebrugge was competent to plead guilty, and (3) her plea was

knowing and voluntary. The court, therefore, accepted Tebrugge’s plea and

adjudicated her guilty.

Tebrugge’s presentence investigation report (“PSI”) calculated her base

offense level as 12, pursuant to U.S.S.G. § 2K2.1(a)(7). The probation officer

recommended a 4-level increase, pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because

the offense involved 22 firearms, and a 3-level downward adjustment, pursuant to

U.S.S.G. § 3E1.1, for acceptance of responsibility. The officer, however, did not

recommend an adjustment based on Tebrugge’s role in the offense. With an

adjusted offense level of 13 and a criminal history category of I, Tebrugge had a

resulting guideline range of 12 to 18 months’ imprisonment. The PSI also noted

that the victim had reported a total loss of $7,000, based on two missing shotguns

and damage to the recovered firearms.

Tebrugge objected to the PSI’s (1) statement that she removed the firearms

from the safe and put them in a storage facility; (2) findings as to restitution;

(3) failure to recommend a downward departure based on Tebrugge’s diminished

capacity and the victim’s wrongful behavior; and (4) failure to recommend an

adjustment for minor role, pursuant to U.S.S.G. § 3B1.2(b). In response to

Tebrugge’s § 3B1.2(b) objection, the probation officer contended that Tebrugge’s

4
involvement in the offense included (1) obtaining the combination to the safe in

which the firearms were located; (2) opening the safe so that the firearms could be

removed; and, (3) helping, at least passively, to transport these firearms first to a

storage facility and later to another location in North Carolina. The officer also

argued that Tebrugge was not charged in a conspiracy and only was being held

accountable for her own acts.

At the first sentencing hearing, Tebrugge adopted her husband’s pretrial

motion to declare the federal guidelines unconstitutional, in light of Blakely, and

renewed her motion for a § 3B1.2(b) adjustment.2 When sentencing re-

commenced, Tebrugge testified that, during the time period of the offense, her

husband, who suffered from bipolar disorder, had become irate and violent and

had physically abused her, resulting in her having to contact the police. On the

day that she opened the firearm safe, she had taken medication, had been

instructed to open the safe, and had not see her husband remove the firearms.

Tebrugge, however, later learned that her husband had removed these firearms and

had placed them in a storage facility that she previously had rented to store

valuables. When she and her husband had traveled to North Carolina, she had not

2
Although the record on appeal does not contain a transcript of this first sentencing
hearing, neither party contests that, during this hearing, Tebrugge raised a Blakely challenge and
renewed her § 3B1.2(b) objection.
5
seen firearms being unloaded and had not had any conversations with Brown, their

colleague who was storing the firearms. After this trip, she had had two

conversations with Brown, during which (1) Brown had told her that she and her

husband should come back for the firearms, and (2) she had told Brown that her

husband had suggested removing the firearms’ serial numbers.

On cross-examination, Tebrugge stated that (1) she had paid Neely, the

owner of the stolen firearms, $900 a month; and (2) she had not known if this

amount was for rent or to purchase the furniture inside the home. After she

opened the safe with the firearms, she had gone to bed and, thus, had not known

what had happened to the items in the safe. She also stated that she only had

assumed that she and her husband were taking the firearms to North Carolina, and

that she had slept during most of their trip.

The prosecutor then asked Tebrugge if she had taken furniture from Neely’s

home, to which Tebrugge answered affirmatively. Tebrugge, nevertheless,

objected to this question, arguing that (1) she did not wish to incriminate herself

because she had a pending state charge relating to her taking this furniture, and

(2) the question was not within the proper scope of cross-examination. The court

overruled this objection, concluding that Tebrugge’s knowledge about the stolen

furniture was directly relevant to her knowledge about, and involvement with, the

6
stolen firearms. Nevertheless, the court gave Tebrugge the option of either

asserting her Fifth Amendment privilege and withdrawing her direct examination

from the court’s consideration, or answering all the prosecutor’s questions that

were within the scope of cross-examination.

When Tebrugge responded that she wished to proceed with her testimony,

she replied that she had thought that she and her husband were going to pay for the

furniture once her husband had his medical license reinstated. Tebrugge also

conceded that she had believed, and had told other people, that her husband had

taken the firearms in response to Neely burning her husband’s boat. Moreover, on

the court’s questioning, she admitted that her husband had told her during their

trip to North Carolina that he was taking the firearms to Brown to store for them.3

The government, in turn, introduced the following testimony of Brown.4

When the Tebrugges had come to his home in North Carolina in June 2003, he had

agreed to store the firearms overnight. After the Tebrugges had arrived at his

home, and while both of the Tebrugges were present, Kevin Tebrugge had told

him that they were not worried about fingerprints in the safe because Kimberly

3
Before resting, the defense also offered the testimony of Dr. William Kepper,
Tebrugge’s primary care physician. Although Dr. Kepper stated that Tebrugge may have been
taking Darvocet and Vicoden during the relevant time period, this medication only would have
had the effect of making her sleepy.
4
On the parties’ joint stipulation, this testimony occurred via telephone.

7
Tebrugge had wiped the safe down with soap and water, and that they felt they

would not be convicted if (1) they “stuck to their stories” and (2) the firearms were

not recovered. During a subsequent telephone call Brown had with Kimberly

Tebrugge, Kimberly had told him to “file,” burn, or, otherwise, destroy the

firearms. Brown also stated that, although he had seen the Tebrugges engage in

lots of disagreements, Kimberly Tebrugge was an assertive spouse, instead of

being “meek and mild.”

The court determined that Kimberly Tebrugge was not a minor participant

because she had “fully participated in the theft,” the Tebrugges jointly had taken

the firearms to North Carolina to conceal them, and they had conspired to avoid

conviction.5 The court clarified that, although it did not believe that Kimberly

Tebrugge was more culpable than her husband, no role adjustment was warranted.

With an adjusted offense level of 13 and a criminal history category of I,

Tebrugge’s resulting guideline range was 12 to 18 months’ imprisonment. The

court, however, explained that it had concluded that Blakely was applicable to the

federal guidelines, such that it could consider them, but that these guidelines were

merely advisory.

5
Noting the discrepancies between Tebrugge’s testimony during her plea hearing and
at sentencing, the court speculated that she should not receive an adjustment for acceptance of
responsibility, but did not reach a finding on this absent the issue being raised.
8
 After giving Tebrugge the opportunity to allocute, the court sentenced her

to 12 months’ and 1 day’ imprisonment, 3 years’ supervised release, a $100

assessment fee, and $7,000 in restitution. With no objections from the parties, the

court ordered that Tebrugge’s husband’s sentence should not commence until after

Tebrugge’s period of incarceration had ended, to allow the couple to continue

caring for their minor children. The court also explained that it was imposing a

sentence at the low end of Tebrugge’s guideline range because (1) she played a

lesser role than her husband in the offense; (2) her criminal history was minimal;

and (3) her intent in possessing the firearms was retaliatory, instead of to profit

from their sale. Finally, the court explained that it had decided that Tebrugge’s

motion for a downward departure was not warranted. When the court inquired

whether Tebrugge required further explanation, she responded negatively.

As discussed above, Tebrugge first argues that the court erred in failing to

adjust her offense level downwards two levels, pursuant to U.S.S.G. § 3B1.2(b),

based on her minor role in the offense of conviction. Tebrugge summarily asserts

that (1) she had taken no initiative and had not been active in pursuing the

offense; (2) although she had not acted under legal duress, she still had acted

under the influence of her husband; (3) her husband had been “the mastermind and

the primary actor”; and (4) her participation only had been “tangential.”

9
 Section 3B1.2(b) of the Sentencing Guidelines provides for a two-level

adjustment in a defendant’s base offense level if she was a minor participant in the

offense. U.S.S.G. § 3B1.2(b). A district court’s determination of a defendant’s

role in an offense constitutes a factual finding reviewed for clear error. United

States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). The defendant

bears the burden of proving by a preponderance of the evidence that she is entitled

to a minor-role adjustment. Id. at 939.

A minor participant in an offense means a participant “[w]ho is less

culpable than most other participants, but whose role could not be described as

minimal.” U.S.S.G. § 3B1.2, comment. (n.5). To determine whether a defendant

played a minor role in the offense for which she has been held accountable, the

court must “measure the defendant’s role against the relevant conduct attributable

to her in calculating her base offense level.” De Varon, 175 F.3d at 944. Where

the relevant conduct attributable to a defendant “is identical to her actual conduct,

she cannot prove that she is entitled to a minor-role adjustment simply by pointing

to some broader criminal scheme in which she was a minor participant but for

which she was not accountable.” Id. at 941.6 Although in many cases this first

6
Amendment 635 of the Sentencing Guidelines, which revised the commentary to
§ 3B1.2, states that a defendant “who is accountable under § 1B1.3 (Relevant Conduct) only for
the conduct in which the defendant personally was involved and who performs a limited function
in concerted criminal activity is not precluded from consideration for an adjustment under this
10
method of analysis will be dispositive, the court also may measure the defendant’s

culpability in comparison to that of other participants in the relevant conduct. Id.

at 944-45.

In the instant case, Tebrugge conceded during sentencing that she had

opened the safe containing the stolen firearms and had rented the storage facility

in which her husband initially had placed these firearms. She also conceded that

her husband had told her during their trip to North Carolina that they were

transporting the firearms out of the state. Moreover, Brown testified that

Tebrugge’s husband had told Brown, with both the Tebrugges being present, that

(1) they were not worried about fingerprints in the safe because Kimberly

Tebrugge had wiped the safe down with soap and water, and (2) they believed they

would not be caught if they “stuck to their stories.” Brown also stated that, during

a subsequent call with Kimberly Tebrugge, she had instructed him to “file,” burn,

or, otherwise, destroy the firearms. Tebrugge, therefore, failed to establish by a

preponderance of the evidence that she had played only a minor role in the offense

of knowingly concealing and possessing stolen firearms. See De Varon, 175 F.3d

at 939, 944.

guideline.” See U.S.S.G. § 3B1.2, comment. (n.3(A)). We have determined that the Sentencing
Commission, through Amendment 635, ratified our approach in De Varon. See United States v.
Boyd, 291 F.3d 1274, 1277 (11th Cir. 2002).
11
 In addition, although the court—in sentencing Tebrugge at the low end of

her guideline range—stated that it had determined that she was less involved in

the offense than her husband, we have explained that “a defendant is not

automatically entitled to a minor role adjustment merely because she was

somewhat less culpable than the other discernable participants.” See De Varon,

175 F.3d at 944. The district court, therefore, did not clearly err in denying

Tebrugge’s request for a § 3B1.2(b) minor-role adjustment.

Tebrugge also argues that the court violated her Fifth Amendment right not

to incriminate herself by compelling her to testify during cross-examination at

sentencing as to facts relating to a pending state criminal action. She asserts that

this Fifth Amendment right superseded the government’s right to cross-examine

her on “tangential” or “inconsequential” issues. In the alternative, she contends

that “[t]he government should not be given a free pass to compel a defendant to

incriminate herself simply because the questions are ‘proper cross-examination.’”

“We review a district court’s ruling on a defendant’s invocation of [her]

privilege against self-incrimination de novo.” United States v. Hernandez, 141

F.3d 1042, 1049 (11th Cir. 1998). The Fifth Amendment’s self-incrimination

clause provides that no person “shall be compelled in any criminal case to be a

witness against himself.” U.S. Const. amend. V. This prohibition “not only

12
permits a person to refuse to answer official questions at a criminal trial in which

[she] is a defendant, but also privileges [her] not to answer official questions put

to [her] in any other proceeding, civil or criminal, formal or informal, where the

answers might incriminate [her] in future criminal proceedings.” Minnesota v.

Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409 (1984)

(quotation and marks omitted). Indeed, a defendant retains this privilege at her

sentencing hearing. See Mitchell v. United States, 526 U.S. 314, 321, 199 S.Ct.

1307, 1311, 143 L.Ed.2d 424 (1999); United States v. Rodriguez, 959 F.2d 193,

197 n.3 (11th Cir. 1992).

In a single proceeding, however, a witness “may not testify voluntarily

about a subject and then invoke the privilege against self-incrimination when

questioned about the details.” Mitchell, 526 U.S. at 321, 199 S.Ct. at 1311-12.

“The privilege is waived for the matters to which the witness testifies, and the

scope of the waiver is determined by the scope of relevant cross-examination.” Id.

at 321, 199 S.Ct. at 1312 (quotation and marks omitted). As justification for this

waiver, the Supreme Court has explained that “[a] witness may not pick and

choose what aspects of a particular subject to discuss without casting doubt on the

trustworthiness of the statements and diminishing the integrity of the factual

inquiry.” Id. at 322, 199 S.Ct. at 1312 (quotations and marks omitted). Thus,

13
once a defendant voluntarily testifies in her own behalf, she may be cross-

examined as to (1) matters “reasonably related” to the subject matter of the direct

examination, and (2) matters affecting credibility. United States v. Pilcher, 672

F.2d 875, 877 (11th Cir. 1982); see also United States v. Clemons, 32 F.3d 1504,

1511 (11th Cir. 1994) (holding that “[t]he government’s questions [on cross-

examination] must be ‘reasonable related’ to the subjects covered by direct

testimony” (quotation omitted)).

Furthermore, the Supreme Court has clarified that the Fifth Amendment’s

Self-Incrimination Clause guarantees “only that the witness not be compelled to

give self-incriminating testimony.” McKune v. Lile, 536 U.S. 24, 35-36, 122 S.Ct.

2017, 2026, 153 L.Ed.2d 47 (2002) (quotation and marks omitted) (emphasis in

original). A witness’s answers “are not compelled within the meaning of the Fifth

Amendment unless the witness is required to answer over [her] valid claim of

privilege.” United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002)

(quoting Murphy, 465 U.S. at 427, 104 S.Ct. at 1142). In McKune, the Supreme

Court explained:

The criminal process, like the rest of the legal system, is replete with
situations requiring the making of difficult judgments as to which
course to follow. Although a defendant may have a right, even of
constitutional dimensions, to follow whichever course he chooses, the
Constitution does not by that token always forbid requiring him to

14
 choose . . . [T]he government need not make the exercise of the Fifth
Amendment privilege cost free.

Id. at 41, 122 S.Ct. at 2029 (internal quotations and marks omitted).

In Mitchell, the Supreme Court examined an appeal in which the defendant

neither put on evidence at sentencing, nor testified on the issue of drug quantity.

Mitchell, 526 U.S. at 319, 119 S.Ct. at 1310. The district court subsequently

(1) determined that the defendant had no right to remain silent at sentencing,

(2) relied in part on the defendant’s decision not to testify in finding that the

government’s evidence was credible, and (3) stated that it had “held it against” the

defendant that she had not testified. Id. at 319, 119 S.Ct. at 1310-11. After

determining that the Fifth Amendment right against self incrimination extends to

sentencing hearings, the Supreme Court concluded that the district court erred in

“holding [the defendant’s] silence against her in determining the facts of the

offense at the sentencing hearing.” Id. at 328-30, 119 S.Ct. at 1315-16.

Similarly, in Rodriguez, we concluded that the district court erred when it

considered the defendants’ (1) exercise of their Fifth Amendment rights not to

testify, and (2) their decisions to appeal, in denying their requests for adjustments

of their base offense levels for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1. Rodriguez, 959 F.2d at 197-98. We noted that § 3E1.1 was not facially

15
unconstitutional under the Fifth Amendment, and that a defendant’s failure to do

such things as making a statement to police or denying his guilt may justifiably

result in the denial of this adjustment. Id. at 197. Nevertheless, we determined

that, if a defendant has shown some signs of remorse, but also has exercised his

constitutional or statutory rights, a court should not balance the exercise of those

rights against the defendant’s expression of remorse in determining whether his

“acceptance” was adequate. Id. at 197-98.

On the other hand, in United States v. Fleming, 849 F.2d 568, 569-70 (11th

Cir. 1988), we determined that the defendant’s Fifth Amendment privilege against

self-incrimination did not prohibit the court from considering evidence showing

that the defendant had been involved in uncharged crimes, even though the

defendant declined to present rebuttal evidence because this testimony would have

jeopardized his constitutional rights relative to ongoing investigations. Id. at 569-

70. We explained that (1) the right to allocute was not constitutional; and (2) no

authority supported the defendant’s claim that the court either had to refuse to

consider evidence of acts for which the defendant had not been charged, or grant

him immunity from prosecution for any statements made during allocation. Id. at

569. Important to this analysis, we discussed that we did not have to decide what

accommodation the district court might have been required to make to protect the

16
defendant because the defendant made no requests, other than that the court not

consider the evidence of prior bad acts. Id. at 570.

In the instant case, the prosecutor asked Tebrugge during cross-examination

at sentencing if she had taken furniture from Neely’s home, to which Tebrugge

answered affirmatively. Tebrugge, however, objected to this questioning, arguing

that (1) she did not wish to incriminate herself because she had a pending state

charge relating to her taking this furniture, and (2) the question was not within the

proper scope of cross-examination. The court overruled this objection, concluding

that Tebrugge’s knowledge about the stolen furniture was directly relevant to her

testimony about her knowledge and involvement with the stolen firearms.

Nevertheless, the court gave Tebrugge the option of either asserting her

Fifth Amendment privilege and completely withdrawing her direct examination

from the court’s consideration, or answering the prosecutor’s questions that were

within the scope of cross-examination. The court did not inform Tebrugge that it

would “hold it against” her if she chose to withdraw her testimony. Indeed, after

choosing to proceed with her testimony, Tebrugge responded that she had

believed that the parties had agreed that she and her husband would pay for the

furniture once her husband had his medical license reinstated. Thus, unlike the

facts in Mitchell and Rodriguez, the record reflects that the court recognized that

17
Tebrugge had a Fifth Amendment right not to testify, and it did not threaten to

“hold against her” her decision whether to testify. See Mitchell, 526 U.S. at 319,

119 S.Ct. at 1310-11; see also Rodriguez, 959 F.2d at 197-98. Moreover, similar

to the defendant in Fleming, Tebrugge did not request any accommodations, other

than that the government not be allowed to question her as to her pending state

charges. See Fleming, 849 F.2d at 570.

To the extent that Tebrugge also is arguing that this line of questioning

exceeded the scope of cross-examination, she testified on direct examination that,

on the day that she had opened the safe containing the firearms, she had not seen

her husband remove the firearms. Tebrugge stated she only later had learned that

her husband had removed the firearms and had placed them in a storage facility

that she previously had rented to store valuables. Tebrugge also testified that,

when she and her husband had gone to North Carolina, she had not seen firearms

being unloaded and had not had any conversations with Brown.

Moreover, on cross-examination, Tebrugge again stated that, after she had

opened the safe with the firearms, she had not known what had happened to the

items in the safe, and she only had assumed that they were taking the firearms to

North Carolina. Because the furniture at issue on cross-examination was removed

from the same residence during the same time period as the guns, Tebrugge’s

18
knowledge about the furniture was “reasonably related” to the extent of her

knowledge of, and participation in, the removal of the firearms. See Pilcher, 672

F.2d at 877. The district court, therefore, did not violate Tebrugge’s Fifth

Amendment rights by giving her the option to either testify at sentencing and

subject herself to all proper cross-examination on the pending state theft offense,

or to withdraw her testimony.

Tebrugge’s final argument is that the district court committed a

Blakely/Booker violation when it considered the federal guidelines in determining

her sentence. In a brief she prepared prior to the Supreme Court’s decision in

Booker, she contends that the Supreme Court’s holding in Blakely should preclude

federal courts from applying the federal guidelines, even in only an advisory

manner, because the guidelines are facially unconstitutional and should be

rendered void.

Because Tebrugge timely raised a Blakely objection in the district court, we

review her Blakely/Booker claim on appeal de novo, but reverse or remand only

for harmful error. See United States v. Anderson, 289 F.3d 1321, 1326 (11th Cir.

2002). “[A] constitutional error is harmless if ‘it is clear beyond a reasonable

doubt that a rational jury would have found the defendant guilty absent the error.’”

United States v. Nealy, 232 F.3d 825, 829 (11th Cir. 2000).

19
 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Prior to Tebrugge’s

sentencing hearing, the Supreme Court revisited that rule in Blakely, in the context

of Washington state’s sentencing guideline scheme, and clarified that “the

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by

the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings.” Blakely, 542 U.S. at

___, 124 S.Ct.at 2537 (emphasis in original). Applying these principles, the Court

held that Blakely’s sentence—which was enhanced under the state guidelines

based on the sentencing court’s additional finding by a preponderance of the

evidence that Blakely committed his kidnaping offense with deliberate

cruelty—violated the Sixth Amendment. Id. at ___, 124 S.Ct. at 2534-38. In a

footnote, however, the Court explicitly remarked that “[t]he Federal Guidelines are

not before us, and we express no opinion on them.” Id. at ___ n.9, 124 S.Ct. at

2538 n.9.

20
 While the instant case was pending on appeal, the Supreme Court issued its

decision in Booker, finding “no distinction of constitutional significance between

the Federal Sentencing Guidelines and the Washington procedures at issue” in

Blakely. Booker, 543 U.S. at ___, 125 S.Ct. at 749. Resolving the constitutional

question left open in Blakely, the Supreme Court held that the mandatory nature of

the federal guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Id. at ___,125 S.Ct. at 749-51. In extending

its holding in Blakely to the Guidelines, the Court explicitly reaffirmed its

rationale in Apprendi 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.” Id. at ___, 125 S.Ct. at 756.

In a second and separate majority opinion, the Court in Booker concluded

that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of

1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.

§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)

and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de

novo review of departures from the applicable guideline range)—thereby

effectively rendering the Sentencing Guidelines advisory only. Id. at ___, 125

21
S.Ct. at 764. Thus, the guidelines range is now advisory; it no longer dictates the

final sentencing result but instead is an important sentencing factor that the

sentencing court is to consider, along with the factors contained in 18 U.S.C.

§ 3553(a).7 Id. at ___, 125 S.Ct. at 764-65).

In United States v. Shelton, No. 04-12602 (11th Cir. Feb. 25, 2005), we

recently vacated and remanded a defendant’s 190-month sentence, based on the

defendant’s argument that the district court plainly erred in imposing the sentence

under the federal guidelines, in light of Blakely and Booker. See id., manuscript

op. at 8-17. We determined that no Sixth Amendment violation occurred because

the judicially determined facts on which the court relied in calculating the

defendant’s guideline range either were prior convictions that need not be alleged

in the indictment, or were admitted by the defendant during his change-of-plea

colloquy. See id. at 8-10. Nevertheless, we determined that, because the district

7
These other relevant factors in § 3553(a) include: “(1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2) the need for the sentence
imposed–(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and (D) to provide the defendant
with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the
sentencing range established for . . . (A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines . . .; (5) any pertinent policy
statement []; (6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and (7) the need to provide
restitution to any victims of the offense.” See 18 U.S.C. § 3553(a)(1)-(7).
22
court considered and applied the federal guidelines as mandatory, plain error

occurred under Booker. See id. at 10-13.8

We further held in Shelton that the defendant’s substantial rights were

affected by this error because (1) the court’s comments at sentencing showed that

there was a reasonable probability that it would have imposed a lesser sentence in

the defendant’s case if it had not felt bound by the guidelines, and (2) the

defendant had established a reasonable probability that some sentence below the

guideline range would have been permissible and reasonable in light of Booker

and the § 3553(a) factors. See id. at 13-16. Finally, we concluded, under the

fourth prong of plain-error review, that the defendant had shown that the error had

affected “the fairness, integrity or public reputation of the judicial proceedings in

his particular case.” See id. at 16-17.

Here, Tebrugge’s PSI recommended a 4-level increase, pursuant to

§ 2K2.1(b)(1)(B), because her § 922(j) offense involved 22 firearms. See

U.S.S.G. § 2K2.1(b)(1)(B) (providing for 4-level increase in offense level if the

offense involved 8 to 24 firearms). However, Tebrugge’s indictment charged her

8
During the sentencing hearing in Shelton, the district court (1) expressed several
times its view that the sentence required by the guidelines was too severe; (2) noted that the
defendant’s criminal history category was based on his past charges, instead of on the actual
nature of the crimes as reflected in the sentences imposed in those cases; and (3) stated that its
sentence at the low end of the defendant’s guideline range was “more than appropriate.” See
Shelton, No. 04-12602, manuscript op. at 6-7.
23
with concealing and possessing these firearms, and, in fact, listed each firearm

individually. Moreover, in pleading guilty, Tebrugge conceded that she stole the

firearms listed in her indictment. Thus, similar to the facts in Shelton, in

calculating Tebrugge’s guideline sentence, the court did not rely on facts not

admitted by her or charged in her indictment and, thus, did not violate the Sixth

Amendment. See Booker, 543 U.S. at ___, 125 S.Ct. at 756; see also Shelton, No.

04-12602, manuscript op. at 8-17.

Unlike the defendant in Shelton, however, Tebrugge failed to show that the

court, nevertheless, committed a Booker violation by treating the federal

guidelines as mandatory. Indeed, although the court conducted Tebrugge’s

sentencing hearing before the Supreme Court issued its decision in Booker, the

court stated that it had concluded that Blakely was applicable to the federal

guidelines, such that it could consider them, but that they were merely advisory.

Moreover, to the extent that Tebrugge did not abandon by failing to argue in

her initial brief that the court failed to consider the factors listed in § 3553(a), see

Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)

(issues not argued in initial brief generally are deemed abandoned), the court heard

extensive testimony at sentencing on the nature of the offense and on Tebrugge’s

role in the offense. The court, at least implicitly, adopted the PSI’s description of

24
the offense and its findings on Tebrugge’s history and characteristics. In imposing

a sentence of 12 months’ and 1 day’ imprisonment—a sentence at the low end of

Tebrugge’s guideline range—the court explained that (1) Tebrugge had played a

lesser role than her husband in the offense; (2) her criminal history was minimal;

and (3) her intent in possessing the firearms had been retaliatory, instead of to

profit from their sales. The court also explained that, although it had considered

the motion for a downward departure, it had decided that a departure was not

warranted. Thus, the court considered the nature and circumstances of the offense,

Tebrugge’s character, and the need to avoid unwarranted sentencing disparities

between the codefendants. See 18 U.S.C. § 3553(a)(1)-(3), (6).

The court also considered the need to provide restitution in ordering

Tebrugge to pay restitution in the amount of $7,000. See 18 U.S.C. § 3553(a)(7).

In ordering that the Tebrugges’ terms of imprisonment run consecutively—to

allow them to continue caring for their minor children—the court demonstrated

that it considered the kinds of sentences available. See 18 U.S.C. § 3553(a)(4).

In addition, when the court inquired whether Tebrugge required further

explanation as to her sentence, Tebrugge responded negatively. Because the

district court did not treat the federal guidelines as mandatory in sentencing

25
Tebrugge, and because it considered the factors listed in § 3553(a), no Booker

violation occurred.

Accordingly, we conclude that the district court did not (1) clearly err in

not adjusting Tebrugge’s guideline level based on minor role; (2) violate her Fifth

Amendment right not to incriminate herself at sentencing; or (3) violate her Sixth

Amendment right to a jury trial in considering the federal guidelines in sentencing

her. We, therefore, affirm Tebrugge’s sentence.

AFFIRMED.

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BARKETT, Circuit Judge, concurring:

I concur in the result.

27