United States v. Glover

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 1, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 04-5150
v.

PAUL FREDERICK GLOVER, JR.,

Defendant - Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
D.C. No. 03-CR-182-H)

Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. *

William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

David E. O’Melia, United States Attorney and Kevin Danielson, Assistant United
States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

KELLY, Circuit Judge.

*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
 Defendant-Appellant Paul Frederick Glover, Jr. pled guilty to conspiracy to

manufacture and distribute 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §

846. He was sentenced to 252 months incarceration to be followed by five years

of supervised release. On appeal, he contends that his sentence was improperly

increased based upon facts which were not charged in the indictment. Our

jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm.

Background

Mr. Glover was indicted in a nine-count indictment for various offenses in

connection with the manufacture and distribution of methamphetamine. On April

30, 2004, he pled guilty to a conspiracy count pursuant to a plea agreement. Aplt.

App. 2 at 4. At the change of plea hearing, Mr. Glover objected to various

paragraphs in the overt acts section of the conspiracy count as lacking a factual

basis. By agreement of the parties, various paragraphs were deleted. Id. at 18-21.

As part of the factual basis, the plea agreement contained a paragraph of admitted

facts. Aplt. App. 3 at 7-8. It included facts relevant to a two-level increase in the

offense level for possession of a firearm during the offense, U.S.S.G. §

2D1.1(b)(1), and a four-level enhancement based on defendant’s role in the

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offense, U.S.S.G. § 3B1.1(a), contained in the pre-sentence report (PSR). III R.

at 14-15. In the plea agreement, Mr. Glover admitted that he “sold a lot of the

finished methamphetamine for cash or traded it for other assets such as firearms,

automobile parts, or electronic equipment,” and that “[s]ome people also brought

to me or obtained for me at my request material or equipment that I would use in

the process of making methamphetamine.” Aplt. App. 3 at 7-8.

In written objections and at the sentencing hearing, Mr. Glover objected to

the enhancements, 1 both on factual grounds and based on Blakely v. Washington,

542 U.S. __, 124 S. Ct. 2531 (2004). III R. PSR Addendum at 1, 11; Aplt. App. 5

at 5-12. In his objections to the PSR, he admitted that he possessed firearms in

the course of his methamphetamine distribution activities, including as a medium

of exchange. III R. PSR Addendum at 11. He also indicated that he would not

object to a two-level upward adjustment “pre-Blakely” for his role in the offense,

maintaining that he was assisted only by three persons, not the requisite five or

more necessary for a four-level adjustment. At the sentencing hearing, Mr.

Glover then stipulated to a two-level increase in the offense level for possessing

firearms and compromised with the government for a two-level enhancement for

1
The increase in the offense level for possession of a firearm during the
offense, U.S.S.G. § 2D1.1(b)(1), and the role in the offense upward adjustment,
U.S.S.G. § 3B1.1(a), will be referred to together as “enhancements.”

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being a leader or organizer. 2 Aplt. App. 5 at 5-12. Mr. Glover made various

objections to paragraphs in the PSR relating to drug quantities. Id. at 13. The

district court then sentenced Mr. Glover to 252 months imprisonment, the upper

part of the 210 to 262 months guideline range.

Discussion

At the sentencing hearing, Mr. Glover argued that the factual basis for the

enhancements was not included in the amended indictment and that his statements

in the plea agreement were not sufficient admissions to justify the enhancements.

Aplt. App. 5 at 4-5, 10. On appeal, he argues that the term of his sentence should

not have been increased based on facts that were not alleged in the indictment

under Apprendi v. New Jersey, 530 U.S. 466 (2000) and United States v. Booker,

__ U.S. __, 125 S. Ct. 738 (2005). Aplt. Br. 7-8. We find no merit in this

argument.

In regard to sentencing, a defendant may waive his Sixth Amendment rights

under Apprendi and Blakely by stipulating to facts underlying sentence

enhancements. Blakely, 124 S. Ct. at 2541; United States v. Porter, 405 F.3d

2
The parties stipulated to a base offense level of thirty-two. Aplt. App. 5 at
3. The district court accepted the PSR’s suggestion of a three-level downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a), leaving an
offense level of twenty-nine before the four-level increase—two levels for
leadership role and two levels for possession of a firearm. Aplt. App. 5 at 12.

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1136, 1143 (10th Cir. 2005) (holding that a defendant admitting facts upon which

the court determined the sentence does not violate the Sixth Amendment under

Apprendi or Booker). Mr. Glover admitted in the plea agreement that he traded

finished methamphetamine for other assets, including firearms. He argues that

this statement does not furnish a nexus between the firearms and the conspiracy

offense, so he cannot be deemed to have admitted the facts necessary for a

U.S.S.G. § 2D1.1(B) enhancement. This argument is thin—trading drugs for guns

does provide the requisite nexus. United States v. Rogers. 150 F.3d 851, 858 (8th

Cir. 1998).

Mr. Glover also admitted facts supporting the firearms enhancement in

connection with his sentencing. In his objections to the PSR, he admitted that he

provided firearms that had been exchanged for methamphetamine to another

person regularly. III R. PSR Addendum at 11. Were that not enough, at the

sentencing hearing, Mr. Glover’s counsel, in response to the court’s inquiry of

whether the firearm enhancement was appropriate, commendably admitted that

“it’s fairly seamless in light of the statement that’s made in the plea agreement.”

Aplt. App. 5 at 5-6. Counsel did preserve his argument that such facts needed to

be alleged in the indictment, though. With that issue preserved, counsel

stipulated that the facts had been established for the enhancement. Thus, given

that the facts were admitted by Mr. Glover and are sufficient to warrant the

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enhancement under the law, Mr. Glover has no Blakely claim on the firearms

offense characteristic.

Turning to the role-in-the-offense adjustment, we need not decide if Mr.

Glover’s statement in the plea agreement (that “some people” at his request

furnished him material or equipment to make methamphetamine), is a sufficient

admission to support a four-level enhancement for being an organizer or leader of

five or more participants. In response to the PSR, Mr. Glover objected to a four-

level, but not to a two-level, upward adjustment, “pre-Blakely.” III R. PSR

Addendum at 11. Mr. Glover maintained that no more than three persons assisted

him on a regular basis in drug distribution. Plainly, this is a sufficient admission

by Mr. Glover to warrant an additional two-level U.S.S.G. §3B1.1(c)

enhancement. United States v. McKneely, 69 F.3d 1067, 1079 (10th Cir. 1995).

Further, were there any doubt about Mr. Glover’s admission, at the sentencing

hearing Mr. Glover’s counsel stipulated to the two-level adjustment, while

preserving his argument that the facts had to be alleged in the indictment. Aplt.

App. 5 at 12. As before, we conclude that Mr. Glover’s admissions to the

requisite facts supporting a two-level role-in-the-offense adjustment eliminate any

Blakely claim.

Booker does not alter this conclusion. In Booker, the Court “reaffirm[ed

its] holding in Apprendi: Any fact (other than a prior conviction) which is

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necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756.

However, the Court did not hold that facts supporting sentencing factors had to be

included in the indictment. Indeed, Justice Breyer, in the Court’s remedial

opinion, discussed the difficulty such a requirement would cause. Id. at 761.

Specifically, Justice Breyer commented on the difficulty courts and counsel would

have in a jury trial with an indictment alleging “whether the defendant possessed

a firearm, . . . whether he was an organizer, [or] leader” and other facts which are

not necessary elements of the crime. Id. at 761-62; see U.S.S.G. §§ 2B3.1

(robbery), 3B1.1 (role in the offense). Defendants would have difficulty raising

defenses against both the alleged crime and the enhancements, and juries might be

confused given the complexity of the sentencing guidelines. Id. at 762.

Therefore, the Court concluded that applying the Sixth Amendment requirement

to the sentencing enhancements under the Guidelines “would create a system far

more complex than Congress could have intended.” Id. at 761.

The Fourth Circuit recently rejected a similar challenge in the guilty plea

context—that upward adjustments and departures under the Guidelines must be

alleged in the indictment and found by a jury beyond a reasonable doubt—stating:

A plea of guilty submits the defendant to fact finding by the
judge, rather than the jury. . . . For over 200 years, the trial courts

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 have had jurisdiction to fix sentences, except in peculiar
circumstances such as the present death penalty statute. Certainly
this includes the authority for the judge to find facts unless otherwise
prohibited. Booker has not changed that.
. . . The district court did not err in its fact finding because the facts
were based on the defendant’s own admissions. Therefore, we are of
opinion and hold the defendant’s argument under Blakely to be without
merit.

United States v. Bartram, __ F.3d __, 2005 WL 994828, at *6 (4th Cir. Apr. 29,

2005).

Although there is no Sixth Amendment violation here, there is a non-

constitutional Booker error because the district court treated the guidelines as

mandatory, rather than advisory. See United States v. Gonzalez-Huerta, 403 F.3d

727, 731-32 (10th Cir. 2005) (discussing the difference between constitutional

and non-constitutional Booker error). In Booker, the Court remedied the

constitutional violation of the Sentencing Guidelines by invalidating their

mandatory application and instead requiring courts to apply them in an advisory

manner. 125 S. Ct. at 756-57 (excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). Had

the district court treated the Guidelines as advisory, we would review the sentence

for reasonableness with regard to § 3553(a). See Id. at 765-66.

Assuming that Mr. Glover’s Apprendi objection also preserved his non-

constitutional Booker argument given the unsettled state of the law, 3 we review

See Gonzalez-Huerta, 403 F.3d at 750 n.3 (Briscoe, J., dissenting)
3

(observing that in United States v. Labastida-Segura, 396 F.3d 1140, 1142-43

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whether the district court’s non-constitutional error was harmless as the

government urges. See United States v. Riccardi, 405 F.3d 852, 874-75 (10th Cir.

2005) (applying harmless error analysis to a preserved constitutional Booker

error); United States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir.

2005) (applying harmless error analysis to a preserved non-constitutional Booker

error). Fed. R. Crim. P. 52(a) provides that “[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” Considering

a misapplication of the Guidelines under 18 U.S.C. 3742(f)(1), the Supreme Court

held that “once the court of appeals has decided that the district court misapplied

the Guidelines, a remand is appropriate unless the reviewing court concludes, on

the record as a whole, that the error was harmless, i.e., that the error did not

affect the district court's selection of the sentence imposed.” Williams v. United

States, 503 U.S. 193, 203 (1992) (citing Fed.R.Crim.P. 52(a)); see also Labastida-

Segura, 396 F.3d at 1142-43. In non-constitutional harmless error cases, the

government bears the burden of demonstrating, by a preponderance of the

evidence, that the substantial rights of the defendant were not affected. See

Williams, 503 U.S. at 203.

The government relies heavily on the fact that the district court consulted

(10th Cir. 2005), a defendant’s constitutional objection after Blakely was
sufficient to preserve a non-constitutional Booker error given the difficulty of
predicting the remedy that was adopted the Supreme Court in Booker).

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the Guidelines and that Mr. Glover stipulated to key facts concerning his

sentence. More to the point, all indicators suggest that any sentence on remand

would be the same. Mr. Glover marshaled facts and argument during allocution

to persuade the court to give a sentence at the low end of the range. Cf.

Gonzalez-Huerta, 403 F.3d at 735-36 (noting that pre-Booker, defendants had

every reason to present mitigating circumstances to a district court eliminating the

need to remand so the court may consider additional circumstances). Still, the

district court exercised its discretion to sentence Mr. Glover near the top of the

applicable Guideline range. Compare Riccardi, 405 F.3d at 876 (holding that a

constitutional Booker error was harmless where the district court sentenced at the

top of the range), with Labastida-Segura, 396 F.3d at 1143 (holding that a non-

constitutional Booker error was not harmless where the district court sentenced at

the bottom of the range). The district court based the enhancements on Mr.

Glover’s actual and admitted conduct. This approach was followed in Riccardi,

405 F.3d at 876, and is supported by Booker. 125 S. Ct. at 757 (adopting an

approach that “maintain[s] a strong connection between the sentence imposed and

the offender’s real conduct”).

Finally, the court remarked at sentencing that a sentence at the higher end

of the guideline range was justified in light of Mr. Glover’s criminal history and

the threat he poses to the community. Aplt. App. 5 at 33. These remarks suggest

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that the court believed that the sentence was appropriate considering the

circumstances. Therefore, although the district court erred in mandatorily

applying the Guidelines, we are satisfied that the error was harmless and must be

disregarded.

AFFIRMED.

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