United States v. Serrano

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 3 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 04-2090
ANTHONY SERRANO,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 03-CR-1735-MCA)

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States
Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Charles S. Aspinwall, Charles S. Aspinwall Ltd., Co., Los Lunas, New Mexico, for
Defendant-Appellant.

Before EBEL, BALDOCK, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

A grand jury indicted Defendant Anthony Serrano, a felon, on various firearms

charges after law enforcement seized a 30.06 rifle from his home and a sawed-off shotgun

from his vehicle. At trial, Defendant claimed he did not knowingly possess either the

rifle or shotgun. An unpersuaded jury convicted Defendant of: (1) being a felon in
possession of a sawed-off shotgun in violation of 18 U.S.C. § 922(g)(1) (“count I”);

(2) knowingly possessing a sawed-off shotgun not registered in the National Firearms

Registration and Transfer Record in violation of 26 U.S.C. § 5861(d) (“count II”); and

(3) being a felon in possession of a 30.06 rifle in violation of 18 U.S.C. § 922(g)(1)

(“count III”). The district court sentenced Defendant to 262 months imprisonment.

Defendant appeals, arguing (1) the coercive and intimidating conduct of the district judge

and prosecutor dissuaded two of his witnesses from testifying in violation of his

constitutional right to present a defense, (2) the district court erred in refusing to grant his

two witnesses immunity after they invoked the privilege against self incrimination, and

(3) the district court unconstitutionally increased his sentence under the United States

Sentencing Guidelines’ (“Guidelines”) obstruction of justice provision, see U.S.S.G.

§ 3C1.1, and the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e). We

have jurisdiction, 28 U.S.C. § 1291, and affirm.

I.

With respect to the felon-in-possession charges, the government had the burden of

proving: (1) Defendant knowingly possessed the sawed-off shotgun (count I) and 30.06

rifle (count III); (2) Defendant had been convicted of a felony offense before he

possessed the shotgun and rifle; and (3) Defendant’s possession of the shotgun and rifle

was in or affecting interstate commerce. See 18 U.S.C. § 922(g)(1); United States v.

Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004). With respect to the possession of an

2
unregistered firearm charge (count II), the government had the burden proving:

(1) Defendant knowingly possessed the sawed-off shotgun, see Staples v. United States,

511 U.S. 600, 602 (1994); (2) the sawed-off shotgun had a barrel less than 18 inches in

length or an overall length of less than 26 inches, see 26 U.S.C. § 5845(a)(2);

(3) Defendant knew the characteristics or features of the sawed-off shotgun, see Staples,

511 U.S. at 602, 619; (4) the sawed-off shotgun was in operating condition, see 26 U.S.C.

§ 5845(d); and (5) the sawed-off shotgun was not registered to Defendant in the National

Firearms Registration and Transfer Record, see id. § 5861(d).

At trial, Defendant admitted he was a convicted felon, see Old Chief v. United

States, 519 U.S. 172, 191-92 (1997), and that the 30.06 rifle and sawed-off shotgun

affected interstate commerce. The government also presented uncontroverted evidence

that (1) the shotgun had a 13-inch barrel and an overall length of 23 inches, (2) the

shotgun operated as designed, and (3) Defendant did not register the shotgun in the

National Firearms Registration and Transfer Record. The sole disputed issue at trial was

whether Defendant knowingly possessed the shotgun and rifle.

The government presented the testimony of several witnesses in its case-in-chief to

prove Defendant knowingly possessed the sawed-off shotgun and 30.06 rifle. With

respect to the sawed-off shotgun, two sheriff’s deputies testified they discovered the

shotgun in Defendant’s vehicle after a traffic stop. The deputies found the shotgun within

Defendant’s reach underneath the vehicle’s front seat. The passenger in the vehicle at the

3
time of the stop, Carlos Najar, testified the shotgun did not belong to him. With respect

to the 30.06 rifle, Defendant’s former neighbor, adopted daughter, now ex-wife (Mary

Serrano), and two former brothers-in-law all testified Defendant possessed the rifle.

After the government rested, Defendant offered the jury an alternative theory.

Defendant, in his opening statement, informed the jury that Michael Serrano (Defendant’s

son) and Manuel Franco (Najar’s roommate) would testify the sawed-off shotgun

belonged to Najar. The evidence would also show, according to Defendant, Mrs. Serrano

placed her 30.06 rifle in their house and then called the authorities to report Defendant’s

illegal possession of the rifle. Defendant, consistent with his theory of the case, called

Michael Serrano as his second witness. Shortly after Michael Serrano took the stand,

however, the government requested a bench conference. The government’s attorney told

the district judge that he thought Michael Serrano “should be advised of his constitutional

rights . . . and the reason for that is because [the government] has interviewed him. He

has admitted that he was in the possession together with Carlos Najar of a sawed-off

shotgun, and if he’s going to testify under oath, he’s going to admit to it.”1

1
Defendant asserts on appeal that “[t]he prosecutor was disingenuous in raising
the self-incrimination issue” and only raised the issue “to gain a tactical advantage at
trial[.]” To the extent Defendant is arguing the government engaged in bad faith, we
reject his argument because it is not supported by the record. See United States v.
Crawford, 707 F.2d 447, 450 (10th Cir. 1983) (explaining an assistant United States
attorney had an obligation to disclose the fact that several of the defense witnesses were
targets of other investigations); United States v. Williams, 205 F.3d 23, 32 (2d Cir. 2000)
(explaining that failing to advise a witness of the possible need for counsel and of his
(continued...)

4
 The court, outside the presence of the jury, questioned Michael Serrano and

learned he had not discussed his constitutional rights, especially his right against self

incrimination, with a lawyer. The colloquy between the district court and Michael

Serrano proceeded as follows:

THE COURT: . . . Mr. Serrano, how old are you?
THE WITNESS: I’m 23.
THE COURT: All right. You may be asked a number of questions here by
one of the attorneys that may require you to give testimony about things that
you know concerning the shotgun. The government has indicated to me
that you have given a statement concerning the sawed-off shotgun. You
may be asked questions about matters concerning yourself and that shotgun.
And before I permit any questioning about the shotgun and any involvement
you may have had with that weapon, if any – I don’t know, I don’t know
what the statements are at this point because the questions have not yet been
asked – I need to ask you if you have talked to a lawyer about any of your
constitutional rights, specifically the right against self-incrimination?
THE WITNESS: No, ma’am.
THE COURT: All right. I must advise you that a person such as yourself
who is now a witness having been sworn to give testimony in this case, you
as a witness ha[ve] the privilege under the 5th Amendment to the United
States Constitution to decline to respond to a question if that answer would
tend to incriminate you. That is, if that answer would tend to indicate that
you were guilty of a crime or would furnish a link in the chain of evidence
that would be needed to prosecute you for a crime.
I don’t know specifically what information you have and what
answers you would give or statements that you would make in response to
questions that may be asked of you during the course of your testimony
here. However, based upon the representations made by the lawyer for the

1
(...continued)
right against self incrimination before proceeding with an interview is inconsistent with
established standards of prosecutorial conduct); United States v. Jackson, 935 F.2d 832,
847 (7th Cir. 1991) (noting “ethical duties require prosecutors to warn unrepresented
witnesses of the risk that the testimony they are about to give may be used against
them.”).

5
 government here, there may be matters that you would be questioned about
that would invoke consideration of the 5th Amendment right. And so when
I say that, I ask again whether you have talked to a lawyer about any of
these matters?
THE WITNESS: No, ma’am.
THE COURT: Okay. Do you wish to confer with a lawyer about this
before you give any further testimony?
THE WITNESS: No, ma’am.
THE COURT: Can you explain to me why? Without going into details
about the statement or anything about the gun, just tell me why you feel it is
not necessary to talk to a lawyer.
THE WITNESS: Because I’m just telling the truth about everything.
THE COURT: I understand that. Has anyone advised you or talked to you
about the consequences, the legal consequences that could occur if you give
or make certain statements about the gun, the shotgun, and about your
involvement with the shotgun?
THE WITNESS: No, ma’am.
THE COURT: All right. I’m going to – I’m not in a position to determine
at this moment that this witness understands the nature of the 5th
Amendment privilege. I think he needs counsel, and I’m not going to
permit any further questioning until he has had an opportunity to confer
with counsel. . . .

The court then appointed an attorney to confer with the witness and recessed. Michael

Serrano exercised his Fifth Amendment privilege against self incrimination after he

conferred with his attorney.

Next, Defendant’s attorney informed the district court he anticipated calling

Najar’s roommate, Manuel Franco, to testify. Franco, according to Defendant’s proffer,

would testify Najar owned the sawed-off shotgun and, on the night in question, armed

himself with the shotgun before he got into Defendant’s vehicle. Franco’s testimony,

however, raised the same Fifth Amendment concerns as Michael Serrano’s proffered

testimony (i.e., he ran the risk of being charged with misprision of felony or possession of

6
an unregistered illegal firearm if he testified). The district judge similarly appointed

counsel to advise Franco of his constitutional rights. Franco exercised his Fifth

Amendment privilege after he conferred with his attorney.

The district court found Michael Serrano and Manuel Franco properly invoked

their Fifth Amendment privilege because the testimony of both witnesses could furnish a

link in the chain of evidence needed to prosecute them or subject them to the possibility

of prosecution. See Hoffman v. United States, 341 U.S. 479, 486 (1951) (explaining the

“privilege afforded [by the Fifth Amendment] not only extends to answers that would in

themselves support a conviction under a federal criminal statute but likewise embraces

those which would furnish a link in the chain of evidence needed to prosecute the

claimant for a federal crime.”). The district court further found that if the witnesses took

the stand any testimony they provided would be incriminatory. The court therefore

precluded Defendant from calling either witness. See United States v. Castorena-Jaime,

285 F.3d 916, 931 (10th Cir. 2002) (explaining a defendant does not have the right to

force a witness to invoke his Fifth Amendment privilege before the jury). Defendant

objected, arguing the court’s ruling effectively deprived him of critical exculpatory

evidence. Defendant also made a motion for the district court to grant Michael Serrano

and Manuel Franco use immunity under 18 U.S.C. § 6003. The district court denied the

motion.

7
 Defendant subsequently testified in his own defense. He testified on direct

examination that he had not owned or possessed any firearms, but admitted on cross

examination that he had a felon in possession of a firearm conviction. Defendant opined

that Najar put the shotgun in his vehicle. Defendant also testified the deputies did not

discover the sawed-off shotgun underneath his vehicle’s seat. With respect to the 30.06

rifle, Defendant claimed Mrs. Serrano purchased the rifle and, unbeknownst to him,

placed it in their house. The jury convicted Defendant on all counts.

II.

On appeal, Defendant first argues the coercive and intimidating conduct of the

district judge and prosecutor caused Michael Serrano and Manuel Franco to invoke the

privilege against self incrimination in violation of his constitutional right to present a

defense. We review Defendant’s claim that the government violated his constitutional

right to present a defense de novo. United States v. Solomon, 399 F.3d 1231, 1239 (10th

Cir. 2005).

A.

A criminal defendant’s right to present a defense is essential to a fair trial. United

States v. Valenzuela-Bernal, 458 U.S. 858, 875 (1982) (O’Connor, J., concurring). The

Fifth (or Fourteenth if a state is involved) and Sixth Amendments concomitantly provide

a criminal defendant the right to present a defense by compelling the attendance, and

presenting the testimony, of his own witnesses. Washington v. Texas, 388 U.S. 14, 18-19

8
(1967). The Supreme Court’s broad reading of the Sixth Amendment’s Compulsory

Process Clause, see Taylor v. Illinois, 484 U.S. 400, 407-408 (1988), “establish[es], at a

minimum, that criminal defendants have the right to the government’s assistance in

compelling the attendance of favorable witnesses at trial and the right to put before a jury

evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480

U.S. 39, 56 (1987). Likewise, “[t]he necessary ingredients of the [Fifth and] Fourteenth

Amendement[s’] guarantee that no one shall be deprived of liberty without due process of

law include a right to be heard and to offer testimony[.]” Rock v. Arkansas, 483 U.S. 44,

51 (1987).

A defendant’s right to present a defense, however, is not absolute. Valenzuela-

Bernal, 458 U.S. at 867. “The right may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Rock, 483 U.S. at 55 (internal

quotations omitted). For example, “[t]he accused does not have an unfettered right to

offer testimony that is incompetent, privileged, or otherwise inadmissible under standard

rules of evidence.” Taylor, 484 U.S. at 410 (emphasis added). The right to present a

defense, as a result, does not displace traditional testimonial privileges. See, e.g., Valdez

v. Winans, 738 F.2d 1087, 1089-90 (10th Cir. 1984) (holding the Compulsory Process

Clause did not override the attorney-client privilege); United States v. Lea, 249 F.3d 632,

642-43 (7th Cir. 2001) (holding the Compulsory Process Clause did not override the

marital-communications privilege). The Fifth Amendment privilege, no less, “reflects a

9
complex of our fundamental values and aspirations, and marks an important advance in

the development of our liberty.” Kastigar v. United States, 406 U.S. 441, 444 (1972)

(footnotes omitted). Several courts of appeal, therefore, have held a defendant’s right to

present a defense does not include the right to compel a witness to waive his Fifth

Amendment privilege against self incrimination. See United States v. Moussaoui, 382

F.3d 453, 466-67 (4th Cir. 2004); United States v. Bowling, 239 F.3d 973, 976 (8th Cir.

2001); United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir. 1998); United States

v. Vavages, 151 F.3d 1185, 1191-92 (9th Cir. 1998); United States v. Edmond, 52 F.3d

1080, 1109 (D.C. Cir. 1995); United States v. De La Cruz, 996 F.2d 1307, 1312 (1st Cir.

1993); United States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir. 1992); United States v.

Turkish, 623 F.2d 769, 774 (2d Cir. 1980).

That said, the government cannot substantially interfere with a defense witness’s

decision to testify. In Webb v. Texas, 409 U.S. 95, 97-98 (1972) (per curiam), the

Supreme Court held a trial judge’s “lengthy and intimidating warning” and “threatening

remarks” effectively caused the defendant’s only witness not to testify in violation of the

Due Process Clause. Therefore, a judge’s admonition to a witness can violate Webb if it

is threatening and employs coercive language. United States v. Smith, 997 F.2d 674, 680

(10th Cir. 1993). Courts have applied Webb to prosecutors, United States v. Crawford,

707 F.2d 447, 449 (10th Cir. 1983), and to the joint conduct of the district judge and

prosecutor. United States v. Blackwell, 694 F.2d 1325, 1333-35 (D.C. Cir. 1982).

10
 The due process analysis Webb dictates must be conducted on a case-by-case

basis. Smith, 997 F.2d at 680. The dispositive question in each case is whether the

government actor’s interference with a witness’s decision to testify was “substantial.”

Crawford, 707 F.2d at 449. Interference is substantial when the government actor

actively discourages a witness from testifying through threats of prosecution,

intimidation, or coercive badgering. Smith, 997 F.2d at 680; see also United States v.

Davis, 974 F.2d 182, 187 (D.C. Cir. 1992). The potential for unconstitutional coercion by

a government actor significantly diminishes, however, if a defendant’s witness elects not

to testify after consulting an independent attorney. See Smith, 997 F.2d at 683 (Belot, J.,

concurring).

B.

In this case, the government’s actions did not substantially interfere with

Defendant’s right to present a defense under the Fifth and Sixth Amendments. The

district court found Michael Serrano and Manuel Franco properly invoked their Fifth

Amendment privilege. The record supports the court’s finding and Defendant does not

challenge it on appeal. Thus, Defendant did not have the constitutional right to compel

Michael Serrano or Manuel Franco to waive their Fifth Amendment privileges.

Defendant’s right to compel and offer testimony had to bow to accommodate other

legitimate interests in the criminal trial process.

11
 Likewise, the joint action of the district judge and prosecutor did not substantially

interfere with Defendant’s right to present a defense in violation of the Due Process

Clause. The prosecutor did not act in bad faith when he notified the court that the

witnesses’ testimony could subject them to prosecution for misprision of felony or

possession of an unregistered illegal firearm. See supra n.1. Moreover, the district

court’s colloquy with Michael Serrano was different in degree and kind from the

unconstitutional admonitions in Webb and its progeny. The district judge did not threaten

the witnesses nor did she employ coercive language. To the contrary, the district judge

properly expressed a legitimate concern that the witnesses’ truthful testimony could

subject them to prosecution. See Smith, 997 F.2d at 680 (explaining that, as a general

rule, a court has the discretion to warn a witness about the possibility of incriminating

himself).

Thus, neither the prosecutor nor the district judge discouraged the witnesses from

testifying through threats of prosecution, intimidation, or coercive badgering. Indeed,

nothing in the record indicates the prosecutor ever spoke a word to Michael Serrano or

Manuel Franco about the witnesses’ testimony at trial. The district court engaged in a

brief colloquy with Serrano and Franco to determine if the witnesses understood their

constitutional rights. The court thereafter appointed counsel to inform the witnesses of

their constitutional rights. The witnesses invoked their Fifth Amendment privilege only

after conferring with their independent attorneys. The witnesses’ decision not to testify

12
was not the product of improper governmental coercion of the kind the Court condemned

in Webb, but instead was a decision insulated from such governmental pressures by the

independent and neutral advice of counsel. The governmental action in this case,

therefore, did not run afoul of the Due Process Clause.

III.

Second, Defendant argues the district court erred when it denied his motion under

18 U.S.C. § 6003 to grant use immunity to Michael Serrano and Manuel Franco in the

“interests of justice.” We review Defendant’s claim that § 6003 permits a district court to

grant immunity – an issue of statutory construction – de novo. United States v. LaHue,

170 F.3d 1026, 1028 (10th Cir. 1999).

A.

The Constitution charges the Executive Branch with faithfully executing the laws.

U.S. Const. art. II, § 3. To that end, the “Attorney General and United States Attorneys

retain broad discretion to enforce the Nation’s criminal laws.” United States v.

Armstrong, 517 U.S. 456, 464 (1996) (internal quotations omitted). Congress has

routinely enacted immunity statutes over the years to facilitate the Executive’s

enforcement of the criminal laws, recognizing “the importance of testimony, and the fact

that many offenses are of such a character that the only persons capable of giving useful

testimony are those implicated in the crime.” Kastigar, 406 U.S. at 446. In this line, the

Immunity of Witnesses Act, 18 U.S.C. §§ 6001-6005, permits a United States attorney,

13
with the approval of the Attorney General, to grant witnesses use immunity in order to

compel their testimony in court or grand jury proceedings. Id. §§ 6002, 6003.

The Immunity Act provides the district court with authority to issue “an order

requiring [an individual who has been or may be called to testify] to give testimony or

provide other information which he refuses to give or provide on the basis of his privilege

against self-incrimination[.]” Id. § 6003(a). The district court can only enter an order

under the Immunity Act when a United States attorney, with proper approval of the

Attorney General, requests such an order. Id. § 6003(a)-(b). Thus, “‘Congress gave

certain officials in the Department of Justice exclusive authority to grant immunities.’”

United States v. Doe, 465 U.S. 605, 616 (1984) (quoting Pillsbury Co. v. Conboy, 459

U.S. 248, 253-54 (1983) (emphasis added)).

Because Congress expressly left the decision to seek immunity “exclusively to the

Justice Department[,]” Doe, 465 U.S. at 616-17, courts of appeal have consistently held

grants of immunity are within the prosecutor’s discretion. McGee v. Crist, 739 F.2d 505,

509 (10th Cir. 1984) (collecting cases). We have also held “courts have no inherent

authority to grant a witness use immunity.” United States v. LaHue, 261 F.3d 993, 1014

(10th Cir. 2001). Every other Circuit, save the Third, has likewise held a district court

does not have the inherent authority to grant a defense witness use immunity. See

Moussaoui, 382 F.3d at 466 (4th Cir.); United States v. Bowling, 239 F.3d 973, 976 (8th

Cir. 2001); United States v. Perkins, 138 F.3d 421, 424 (D.C. Cir. 1998); United States v.

14
Mackey, 117 F.3d 24, 27 (1st Cir. 1997); United States v. Follin, 979 F.2d 369, 374 (5th

Cir. 1992); United States v. Cuthel, 903 F.2d 1381, 1384 (11th Cir. 1990); United States

v. Wilson, 715 F.2d 1164, 1173 (7th Cir. 1983); United States v. Lenz, 616 F.2d 960, 962

(6th Cir. 1980); Turkish, 623 F.2d at 772-73 (2d Cir.); United States v. Alessio, 528 F.2d

1079, 1081 (9th Cir. 1976); but see Government of Virgin Islands v. Smith, 615 F.2d 964,

968-69 (3d Cir. 1980). In short, the United States attorney and his superiors have the sole

power to apply for immunity, LaHue, 261 F.3d at 1014, because Congress explicitly left

federal courts out of the business of weighing the comparative worth of granting use

immunity to a defense witness. See Doe, 465 U.S. at 616 (explaining the decision to seek

use immunity involves a balancing of governmental interests left exclusively to the

Executive Branch); Ullmann v. United States, 350 U.S. 422, 431-33 (1956) (holding a

district court has no discretion to determine whether the exchange of immunity from

prosecution for testimony would best serve the public interest).

B.

In this case, the district court correctly denied Defendant’s motion to grant Michael

Serrano and Manuel Franco immunity. Section 6003 only permits a district court to enter

an immunity order upon the request of a United States attorney and the United States

attorney made no such request here. The district court did not have the inherent authority

to grant Serrano and Franco immunity in the “interests of justice.” Defendant’s reliance

upon the Third Circuit’s case in Smith, 615 F.2d at 968-69, to argue the contrary is

15
misplaced. We explicitly rejected the reasoning in Smith over twenty years ago. See

United States v. Hunter, 672 F.2d 815, 818 (10th Cir. 1982) (concluding “courts have no

power to independently fashion witness use immunity under the guise of due process”),

overruled on other grounds by United States v. Call, 129 F.3d 1402, 1404 & n.2 (10th

Cir. 1997).2

Defendant also argues, relying on the United States Attorney’s Manual, that the

prosecutor in this case should have granted Serrano and Franco immunity. Defendant’s

argument fails because the manual does not create any substantive rights and, in any

event, the decision to grant immunity lies in the exclusive discretion of the prosecutor.

Moreover, we presume the United States attorney’s office has properly discharged its

official duties absent clear evidence to the contrary. Armstrong, 517 U.S. at 464. The

prosecutor’s discretion is, of course, subject to constitutional constraints. Id. No

evidence in the record shows the prosecutor engaged in misconduct, see supra n.1., and

no constitutional violation occurred here.

2
In Hunter, 672 F.2d at 818, we left open the question whether a district court
could compel a United States attorney, on pain of dismissal, to grant immunity when the
prosecutor deliberately denies immunity in an attempt to distort the fact finding process.
See also LaHue, 261 F.3d at 1014 (same). Similarly, we have no reason to reach that
question today because Defendant has not argued the district court should have entered an
order requiring the United States attorney to grant immunity as a sanction for
prosecutorial misconduct. See Doe, 465 U.S. at 616 n.16.

16
 IV.

Third, Defendant argues the district court violated his right to a jury trial under the

Sixth Amendment when it adjusted his base offense level upward two levels for

obstruction of justice. See U.S.S.G. § 3C1.1; Blakely v. Washington, 124 S. Ct. 2531

(2004); United States v. Booker, 125 S. Ct. 738 (2005). Defendant did not raise his

Booker argument in the district court. We thus review Defendant’s forfeited Booker error

for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 2005 WL 807008, *3

(10th Cir. 2005) (en banc).3

A.

In Booker, 125 S. Ct. at 756, the Supreme Court held that, under the Guidelines,

the Sixth Amendment requires: “Any 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.” To remedy the constitutional infirmity

inherent in the Guidelines, the Court rendered the Guidelines advisory. Id. at 757. A pre-

Booker sentencing court could, therefore, commit “non-constitutional Booker error” or

“constitutional Booker error.” Gonzalez-Huerta, 2005 WL 807008, at *2. Non-

3
The district court sentenced Defendant pre-Blakely and Booker. Defendant
argues we should review his claims of Sixth Amendment error de novo because of the
intervening change in the law. In Gonzalez-Huerta, 2005 WL 807008, at *5, 7, the en
banc Court rejected this line of reasoning, so we must do the same.

17
constitutional Booker error exists if the sentencing court mandatorily applied the

Guidelines. Id. Constitutional Booker error exists if the sentencing court relied upon

judge-found facts, other than those of a prior conviction, to enhance a defendant’s

sentence mandatorily. Id.

If forfeited, both types of Booker error are reviewed under the plain-error test.

Gonzalez-Huerta, 2005 WL 807008, at *3; United States v. Dazey, Nos. 03-6187, 03-

6205, 03-6208, 03-6228, 2005 WL 846227, *19 (10th Cir. April 13, 2005). As a result,

we can only correct an alleged Booker error not raised in the district court if (1) the

sentencing court committed an actual error, (2) the error is plain or obvious, (3) the plain

error affects substantial rights, and (4) the plain error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Gonzalez-Huerta, 2005 WL

807008, at *3. Non-constitutional and constitutional Booker errors satisfy the first two

prongs of the plain-error test. United States v. Clifton, No. 04-2046, 2005 WL 941581,

*5 (10th Cir. April 25, 2005). Under the third prong of the plain-error test, the defendant

bears the burden of demonstrating a reasonable probability that, but for the Booker error,

the result of the sentencing proceeding would have been different. Id. at *6. Under the

fourth prong of the plain-error test, we will notice a non-constitutional Booker error only

if the error is particularly egregious and failure to notice the error would result in a

miscarriage of justice. Gonzalez-Huerta, 2005 WL 807008, at *7. In the case of

18
constitutional Booker error, we apply this demanding standard less rigidly. Dazey, 2005

WL 846227, at *19.

B.

In this case, we review Defendant’s forfeited Booker error for plain error. The

Booker error is clear or obvious error under current law. Defendant, however, has failed

to carry his burden of demonstrating a reasonable probability exists that, but for the

Booker error, the result of his sentencing proceeding would have been different. To start,

Defendant’s base offense level was twenty. See U.S.S.G. § 2K2.1(a)(4)(B). The district

court then adjusted Defendant’s offense level upward two levels to twenty-two based

upon his obstruction of justice. Id. § 3C1.1.

In addition to that calculation, however, the district court also determined that

Defendant was an armed career criminal under 18 U.S.C. § 924(e)(1). Based upon

Defendant’s armed career criminal status, the district court determined Defendant’s base

offense level was thirty-four. See U.S.S.G. § 4B1.4. Section 4B1.4(b) further required

the district court to calculate Defendant’s sentencing range using the greater of the two

offense levels – thirty-four for being an armed career criminal or twenty-two for

unlawfully possessing a firearm and obstructing justice. The district court, therefore,

used the offense level dictated by Defendant’s armed career criminal status (thirty-four)

to calculate the applicable Guidelines range. Consequently, the obstruction-of-justice

enhancement that Defendant now challenges actually fell out of the offense level

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calculation. For these reasons, Defendant has failed to show a reasonable probability that

the district court’s two level enhancement of his offense level for obstruction of justice

affected the length of his sentence. As a result, Defendant has failed to carry his burden

under the third prong of the plain-error test and we need not reach the fourth prong.

V.

Finally, Defendant argues the district court violated his Sixth Amendment right to

a jury trial under the Sixth Amendment, as construed in Blakely and Booker, when it

enhanced his sentence under the ACCA. Because Defendant did not raise this Booker

argument in the district court, we review for plain error. Gonzalez-Huerta, 2005 WL

807008, at *3.

A.

The ACCA requires a mandatory minimum sentence of fifteen years for a

defendant who is (1) convicted of being a felon in possession of a firearm, and (2) has

“three previous convictions by any court . . . for a violent felony . . . committed on

occasions different from one another[.]” 18 U.S.C. § 924(e)(1); Shepard v. United States,

125 S. Ct. 1254, 1257 (2005). The ACCA defines “violent felony” as “any crime

punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson,

or extortion, involves the use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another[.]” 18 U.S.C. § 924(e)(2)(B)(ii)

(emphasis added). We recently explained that “[b]ecause determining whether a given

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felony constitutes a ‘violent felony’ is a question of law and not fact, the Sixth

Amendment does not require that determination to be made by a jury.” United States v.

Moore, 401 F.3d 1220, 1225 (10th Cir. 2005). “Booker’s exception for prior convictions

subsumes inquiries into whether a given conviction constitutes a ‘violent felony.’” Id.

Therefore, “[n]either the existence of prior convictions, nor their classification as ‘violent

felonies,’ constitute facts that must be charged in an indictment and proven to a jury

under a ‘beyond a reasonable doubt’ standard.” Id. at 1226; see also United States v.

Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005) (concluding a sentencing enhancement

under the ACCA does not violate the Sixth Amendment); United States v. Nolan, 397

F.3d 665, 667 n.2 (8th Cir. 2005) (same).

B.

The ACCA applied to Defendant because (1) a jury convicted him of being a felon

in possession of a firearm, and (2) he had, among others, three different felony arson

convictions. The ACCA specifically defines arson as a “violent felony.” Defendant does

not argue that arson, as defined under New Mexico law, is not a “violent felony” under

the ACCA or that the district court considered improper evidence in determining whether

his three prior arson felonies constituted “violent felonies” for purposes of § 924(e). See

Shepard, 125 S. Ct. at 1263. Defendant’s sole argument is that the Sixth Amendment

entitled him to have a jury determine whether his prior felonies were “violent.” We have

already rejected this argument, and do so again here for the reasons cogently explained in

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Moore. Thus, Defendant failed to carry his burden of demonstrating error under the first

prong of the plain-error test.

AFFIRMED.

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