F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 16, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-4182
STEPHEN W. RINES aka Steve Rines,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 1:03-CR-94-PGC)
Submitted on the Briefs: *
Steven B. Killpack, Federal Public Defender and Scott Keith Wilson, Assistant
Federal Public Defender, Salt Lake City, Utah, for Defendant - Appellant.
Paul M. Warner, United States Attorney and Wayne T. Dance, Assistant United
States Attorney, Salt Lake City, Utah, for Plaintiff - Appellee.
Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
HARTZ , Circuit Judge.
*
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant Stephen W. Rines pleaded guilty to the charge of possession of
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He
stipulated that (1) he knowingly possessed ammunition and (2) at the time he
possessed the ammunition he had been convicted of a crime punishable by more
than one year of imprisonment.
After the parties filed their respective positions on sentencing but before
the sentencing hearing, the United States Supreme Court handed down Blakely v.
Washington, 542 U.S. 296 (2004). The district court invited the parties to submit
supplemental briefs arguing Blakely’s effect, if any, on Defendant’s sentence.
Defendant filed a supplemental brief arguing that “the only factor this Court can
now consider is the evidence of the prior conviction.” R. Vol. I Doc. 41 at 2.
At the sentencing hearing the district court concluded that Defendant’s total
offense level was 21 and his criminal history fell in category V, yielding a
sentencing range of 70 to 87 months. The district court held, however, that it
would be unconstitutional to apply the guidelines to Defendant’s case. It
concluded that it needed to impose a sentence somewhere between probation and
ten years’ imprisonment—the statutory minimum and maximum—and stated:
I am going to find that the appropriate sentence in this case is a 70
month sentence. I think looking at the record in its entirety and
exercising my sentencing discretion that would be the appropriate
sentence in this matter. And so if I were to proceed without the
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guidelines, a 70 month sentence. If I were to proceed with the
sentencing guidelines, it would be a 70 month sentence.
R. Vol. III at 20.
Defendant appealed. During the pendency of the appeal the Supreme Court
handed down United States v. Booker, 125 S.Ct. 738 (2005). In Booker, one
majority held that under the Sixth Amendment “[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
756. A second majority nevertheless salvaged in part the federal Sentencing
Guidelines in its “remedial” holding. It “corrected the Sixth Amendment error
created through mandatory application of the Sentencing Guidelines by severing
the statutory section that required district courts to sentence within the Guidelines
range.” United States v. Payton, 405 F.3d 1168, 1172-73 (10th Cir. 2005). Thus,
post-Booker the guidelines are still in effect, but merely advisory.
Defendant accordingly modified his arguments. He now contends that
Booker’s constitutional holding—mandatory enhancements based on judge-found
facts violate the Sixth Amendment—applies to his case. But, citing Bouie v. City
of Columbia, 378 U.S. 347 (1964), he argues that applying the remedial holding in
sentencing for an offense that predated Booker would violate the Fifth
Amendment’s Due Process Clause because it is a “judicially created rule [that] is
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[an] unforeseeable alteration of what was up until Booker a clear statutory
requirement [that he be sentenced within the guidelines range].” Aplt. Br. at 9.
If Defendant prevails on this argument, the guidelines would remain mandatory in
his case but the enhancements could be unconstitutional—the same result he
sought in district court. He also argues, in the alternative, that the district court
erred in its discretionary sentence because it failed to consider the sentencing
factors outlined in 18 U.S.C. § 3553(a) and instead exercised “unfettered
discretion.” Aplt. Br. at 15.
We do not tarry long on Defendant’s first argument because it is contrary to
the Supreme Court’s explicit instructions in Booker. Writing for the majority of
the Court in the remedial portion of the opinion, Justice Breyer stated that “we
must apply today’s holdings—both the Sixth Amendment holding and our
remedial interpretation of the Sentencing Act—to all cases on direct review.”
Booker, 125 S.Ct. at 769 (emphasis added). We decline Defendant’s invitation to
hold that the Supreme Court ordered us to violate the Constitution. See also
United States v. Duncan, 400 F.3d 1297, 1307-1308 (11th Cir. 2005) (rejecting
the same argument on different grounds). Moreover, it appears to us that
Defendant was not deprived of constitutionally required notice. The only
difference between the Booker regime under which his sentence is determined and
the regime he would have anticipated at the time of his offense is that the
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guidelines are not mandatory. He was sentenced within the guidelines range, so
he cannot complain of any unanticipated harshness.
Defendant’s second argument also fails. It is true that the district court did
not march through § 3553(a)’s sentencing factors, but we have never imposed
such a requirement. Rejecting a similar challenge—that a district court’s
discretionary decision to impose consecutive sentences was invalid because the
district court did not articulate its reasons—we stated:
[I]t [is] quite clear that the sentencing court is not required to
consider individually each factor listed in § 3553(a) before issuing a
sentence. Moreover, we do not demand that the district court recite
any magic words to show that it fulfilled its responsibility to be
mindful of the factors that Congress has instructed it to consider.
United States v. Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir. 2005)
(internal quotation marks omitted). Here, the district court stated that it “look[ed]
at the record in its entirety,” and after its review it concluded that 70 months was
an appropriate sentence. The court heard several different arguments regarding
the appropriate sentencing range and was obviously familiar with the facts of the
case. We will not make the useless gesture of remanding for reconsideration
when Defendant was aware at sentencing that all relevant factors would be
considered by the district court.
We note that Defendant did not argue that the 70-month sentence is
unreasonable, and we therefore offer no opinion on the matter.
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The sentence is AFFIRMED.
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