United States v. McConnel

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 25, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 03-6345

JOSEPH EDWARD McCONNEL,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CR-02-009-M)

Edward J. Kumiega, Assistant United States Attorney, (Robert G. McCampbell, United
States Attorney, and Mark A. Yancey, Assistant United States Attorney, with him on the
brief) Oklahoma City, Oklahoma, for the Plaintiff-Appellee.

Michael Johnson, Oklahoma City, Oklahoma, for the Defendant-Appellant.

Before EBEL, HOLLOWAY and TYMKOVICH, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Joseph Edward McConnel was convicted by a jury of four counts

arising from his sales of firearms. The indictment alleged these offenses: Count 1, dealing

in firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A); Counts 2 and 3, selling

firearms to a person previously convicted of a felony in violation of 18 U.S.C. §
922(d)(1)&(3); and Count 4, possession and transfer of semi-automatic assault weapons in

violation of 18 U.S.C. § 922(v)(1).1 Defendant was sentenced to 71 months’ imprisonment,

consisting of concurrent terms of 60 months on Count 1, 71 months on Count 2, 71 months

on Count 3, and 60 months on Count 4. The district court also imposed a fine of ten

thousand dollars and a special assessment of four hundred dollars.

Defendant McConnel now brings this direct appeal from his conviction and sentence.

Jurisdiction in this court is granted by 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

I
Background

Defendant, who had been an attorney before his license was suspended, was self-

employed as a private investigator. One attorney for whom he worked regularly and with

whom he had an especially close relationship was Charles Holdstock. One of Holdstock’s

clients was a motorcycle gang member named George Schuppan. Schuppan and defendant

McConnel had been introduced by Holdstock sometime in December 2000. At trial,

McConnel testified that Schuppan had been introduced as a friend, not a client. The

government’s evidence had at least suggested that McConnel may have known otherwise.

Schuppan, who had at least once previously been convicted of a felony, had been

arrested for possession of a firearm and drugs in September 2000 in Caddo County,

1
Subsection (v) of section 922 was enacted in 1994 to apply for a period of ten
years. Pub.L. 103-322, Title XI, § 110105(2), 108 Stat. 2000. Thus, it expired of its own
terms in 2004. No argument is made that this affects the validity of the judgment in this
case, nor do we question that the judgment remains valid in spite of this change in the
law.

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Oklahoma. In January 2001, officers served a federal search warrant at Schuppan’s home,

finding more guns and equipment for manufacture of methamphetamine. Schuppan agreed

to cooperate with the authorities and said that defendant McConnel was one of his suppliers

of guns.

Federal officers from the Bureau of Alcohol, Tobacco and Firearms (ATF) decided

to pursue Schuppan’s information about defendant McConnel and to use Schuppan to attempt

to make undercover gun purchases from McConnel. The officers arranged to have Schuppan

make a phone call to McConnel, which was recorded, in which he told defendant McConnel

that he wanted to buy some more guns because he had some “brothers” (allegedly meaning

fellow gang members) coming from out of town who had “to take care of a little situation.”

Schuppan told defendant that he, Schuppan, could not sign papers for gun purchases because

he was a convicted felon. Defendant indicated that would be no problem, saying “I’ve got

you covered in spades.”

Later that day, Schuppan went to McConnel’s office and purchased five guns and

some ammunition for $1,750. Schuppan was wearing a recording device to tape record the

conversation, but the attempt failed. Defendant testified at trial that in this personal meeting,

before the guns were sold, Schuppan had told him that he was not a felon and that he had

made the statements on the telephone just to impress someone else who had been listening

to the conversation from Schuppan’s end.

A second transaction occurred in February 2001. Schuppan again purchased several

guns from defendant McConnel, using ATF money. Two of the guns involved in this sale

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were the illegal semi-automatic assault weapons that were the subject of Count 4 of the

indictment. Later that month, another search warrant was served on Schuppan’s residence,

which resulted in discovery of a methamphetamine lab and ten more guns, including the two

semi-automatic assault rifles. The government adduced evidence at trial that all of these

guns had been supplied by defendant “on consignment” after the previous raid had resulted

in seizure of all the guns Schuppan had earlier. Schuppan was taken into custody for

violating his cooperation agreement by committing other crimes and remained in custody

through trial of the instant matter.

On the same day that the second search warrant had been executed at Schuppan’s

residence and while he was in custody, Schuppan made a second recorded call to defendant

McConnel in which he discussed making payment arrangements for the guns he had bought.

Prices for specific guns, including the assault rifles, were discussed. The two agreed that

Schuppan’s girlfriend, Emma Jean Moore, would bring payment to defendant. Two days

later, March 1, 2001, Moore made a recorded call to defendant to set up a meeting. Soon

afterward, defendant came to Moore’s residence (where Schuppan had also been living prior

to being taken into custody). With an agent hiding in another room, defendant sold Moore

three more guns. About two weeks later, Moore went to defendant’s office accompanied by

an undercover agent posing as her cousin. Moore paid defendant over $2,000 as the balance

Schuppan owed on previous purchases. As directed by the ATF agents, Moore requested a

list of weapons that Schuppan had obtained from defendant, and defendant complied, giving

Moore a handwritten list.

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 Almost two months later, authorities executed search warrants on defendant’s home,

car and office. At the home, agents recovered notebooks and other papers about gun sales

and seven guns with price tags on them. Defendant’s car, which was parked outside the

home, contained ten more guns, some with price tags, and magazines about guns, a

“Bluebook of Gun Values,” and other evidence.

Defense evidence included the admission by the government’s evidence custodian that

none of the guns seized from defendant’s home or car was illegal; that much of the evidence

was consistent with gun collecting; and that no license is necessary to participate in gun

shows. Defendant testified that he was merely a collector; that he had met Schuppan through

attorney Holdstock, who introduced Schuppan as a friend, not a client; and (as already

mentioned) that after the recorded telephone conversation in which Schuppan had said that

he was a convicted felon, Schuppan had later said otherwise.

II
Alleged juror dishonesty during voir dire

During voir dire all jurors were asked if they had “ever been involved in any court,

in any criminal matter” concerning themselves or close relatives in which they had been a

defendant, witness or victim. The person who later became foreman of the jury, J.L., did not

respond, although he once had been charged with several felonies. After trial defendant

learned of the jury foreman’s previous indictment for fraud and moved for a new trial.

Defendant now argues on appeal that the district judge abused her discretion in denying the

motion.

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 In his motion for a new trial, defendant pointed out that J.L. had been indicted in state

court on three counts of fraud and one count of perjury in 1987. The indictment against J.L.

had been dismissed, and he had then been charged by information with five counts based on

basically the same allegations. Those charges were dismissed at preliminary hearing and no

other charges were filed. Defendant alleged that J.L. had intentionally failed to disclose

these facts.

The trial court held a hearing on defendant’s motion for a new trial, at which jury

foreman J.L. testified. He testified that he did not specifically remember the above quoted

question having been asked during voir dire, but if asked again he would not respond,

explaining that his thinking was that he had not been “involved in any court” because the

charges had been dismissed before trial. The district judge found that the juror was credible

and candid. Not only did she find that the juror sincerely believed that the voir dire question

applied only to matters that went to trial, but she further found that this belief was reasonable,

even though mistaken. The court concluded that the juror had not actually been biased. The

judge also concluded that she could not find implied bias, citing the very different

circumstances of the charges against defendant and the fraud charges that had once been

brought against the juror.

Our standard of review for the denial of a motion for a new trial is abuse of discretion.

See, e.g., Skaggs v. Otis Elevator Co., 164 F.3d 511, 514 (10th Cir. 1998). The district

court’s finding that the juror testified credibly about the matter is reviewed only for clear

error. See Gonzales v. Thomas, 99 F.3d 978, 985 (10th Cir. 1996). Our analysis will

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consider whether the facts show that the juror had an implicit bias, which we review de novo.

See Skaggs, 164 F.3d at 517.

Defendant is entitled to a new trial if he can show that the juror failed to honestly

answer a material question on voir dire and that a correct response would have provided a

valid basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548, 556 (1984).2 We conclude that defendant cannot establish either of these two

prerequisites for the relief he seeks.

First, as noted the district judge found that the juror’s answer (or non-answer),

although mistaken, was not dishonest. Defendant attempts to show that this finding was

clearly erroneous by arguing that the question was unambiguous and that the juror was an

educated man who had formerly held an important position in Oklahoma higher education.

Therefore, defendant contends, the juror’s failure to answer the clear question by revealing

that he had faced criminal charges in the past must have been dishonest. Defendant further

contends that the dishonesty alone shows bias, relying on Burton v. Johnson, 948 F.2d 1150,

1158 (10th Cir. 1991).

We are not persuaded. Defendant’s argument does not meet the very high standard

of showing that the district judge’s finding of mistake on the part of the juror, rather than

dishonesty, was clearly erroneous. Moreover, we reject defendant’s contention that

dishonesty alone would be sufficient. We have previously noted that to hold that bias can

2
We have observed that the reasoning concerning questions of juror bias under the
Sixth Amendment in criminal cases is germane to the analysis in civil cases under the
Seventh Amendment. Skaggs, 164 F.3d at 515 n.2.

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be inferred solely from a dishonest response during voir dire would in effect do away with

the second prong of McDonough. Skaggs, 164 F.3d at 517. Indeed, this case well illustrates

why we were correct to have rejected the same argument in Skaggs. This is because of the

marked difference between the charges that were once brought against juror J.L. and the

charges facing Mr. McConnel. In these circumstances, the juror’s experience might have led,

if anything, to a bias against the prosecution. See United States v. Ross, 263 F.3d 844, 847

(8th Cir. 2001). We note, also, that Burton is not to the contrary. That case did not hold that,

as a general rule, bias may be inferred merely from the fact that a prospective juror answered

dishonestly during voir dire. Instead, it was only the close similarity in circumstances

between the issues to be tried and the juror’s undisclosed experiences in Burton which

supported the inference of bias.

By contrast, even where the issues were more closely related than they are in the

instant case, we have declined to infer juror bias. In Gonzales v. Thomas, 99 F.3d 978 (10th

Cir. 1996), no bias, actual or implied, was found in circumstances that should have provided

a stronger basis for the defense’s argument. In Gonzales, the juror in question had been a

rape victim 24 years earlier, and the prosecution there was for rape and armed robbery.

Nevertheless, despite some similarities in the types of cases, this court held that the juror did

not show actual bias, nor had she deliberately concealed her experience during voir dire. The

McDonough test is “directed at intentionally incorrect responses,” the panel in Gonzales said.

99 F.3d at 984. The court there also found no implied bias. If a rape victim can be an

impartial juror in a rape prosecution, then surely juror J.L., whose experience was having

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been charged with embezzlement and fraud and against whom the charges had been

dismissed, could be an impartial juror for the trial of this weapons case.

Finally, we note that defendant does not allege actual bias, relying solely on his

argument that bias should be implied or presumed here. We have noted that the McDonough

framework is not the exclusive means for showing that a party has been denied a fair trial

because of the participation of a biased juror. See Skaggs, 164 F.3d at 516; Gonzales, 99

F.3d at 985. But because Mr. McConnel has not attempted to show any circumstances other

than the allegedly dishonest voir dire answers and relies solely on McDonough, we need not

go further in our analysis here.

III
Alleged error in giving jury instruction on deliberate ignorance

Defendant contends that he was denied a fair trial in violation of his due process rights

because the trial court erroneously gave what is known as a deliberate ignorance instruction,

which as seen infra permits the jury to infer defendant’s knowledge of a critical fact from

evidence that the defendant purposely avoided information relevant to that fact.

We review jury instructions as a whole to determine whether they adequately state the

applicable law, and review de novo whether a particular instruction is proper. United States

v. Hanzlicek, 187 F.3d 1228, 1233 (10th Cir. 1999).3 However, in this case we find that the

alleged error has been forfeited. At trial, defendant only objected to the instruction as to

3
We have noted some discrepancy in our statements on the applicable standard of
review. United States v. Delreal-Ordones, 213 F.3d 1263, 1264 n.2 (10th Cir. 2000). As
in that case, we need not attempt to resolve the apparent conflict because in this case we
must apply the plain error standard.

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Count 4. Therefore, the alleged error in giving the instructions as to all other counts can only

be reviewed for plain error. Fed. R. Crim. P. 30(d). As to Count 4, where an objection was

properly made at trial, the alleged error has been waived by failure to brief the issue.4 See

State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). Consequently,

we consider only whether the trial court committed plain error in giving the instruction as to

Counts 1 through 3. “This court has discretion to recognize plain error that was not raised

in the district court when (1) there is an error; (2) that is plain; (3) that affects substantial

rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Lawrence, 405 F.3d 888, 906 (10th Cir.), cert. denied, 126

S.Ct. 468 (2005) (citing United States v. Cotton, 535 U.S. 625, 632-32 (2002)).

The nature of these counts requires us to analyze the issue separately as to Count 1,

which charged dealing in firearms without a license, and as to Counts 2 and 3, which charged

that defendant on separate occasions had sold firearms to Schuppan, knowing or having

reasonable cause to believe that Schuppan had been previously convicted of a felony or was

under indictment for a felony. As to Count 1, such knowledge is not an element of the

offense of dealing in firearms without a license, and thus a deliberate ignorance instruction

would be, on its face, inapplicable to that count. As to Counts 2 and 3, however, it is an

element of the offense that the defendant “knowingly” transferred firearms to a person whom

4
Counsel presented the issue as to Count 4 vigorously at oral argument, but we
believe we must follow our waiver rule and decline to consider the issue; it would be
unfair to the government for us to decide the issue without having the benefit of the
government’s briefing on it.

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he knew or had reason to believe could not lawfully possess firearms because of a past felony

conviction or a pending felony charge. Thus, the deliberate ignorance instruction could,

under the right circumstances, be applicable to those counts.

It is undisputed that the instruction given was, by absence of any limiting language,

applicable to all counts. The instruction stated:

You may find that a defendant deliberately closed his eyes to what would
otherwise have been obvious to him. While knowledge on the part of the
defendant cannot be established merely by demonstrating that the defendant
was negligent, careless or foolish, knowledge can be inferred if the defendant
deliberately blinded himself to the existence of a fact.

I ROA Doc. 60, Instruction 41.

We have cautioned that an instruction on deliberate ignorance is only appropriate in

rare circumstances. Hanzlicek, 187 F.3d at 1233. Defendant contends that it was improper

to give the instruction as to Count 1 in this case, citing United States v. Covington, 133 F.3d

639, 644 (8th Cir. 1998), for the proposition that it is error to give a generally applicable

deliberate ignorance instruction. The government asserts that Covington is distinguishable

because it dealt with an instruction that was erroneously given because it was properly

applicable to only one of several defendants, unlike the circumstances here. But that

difference is not significant. We agree with defendant on the general proposition that a

deliberate ignorance instruction should not be given without language limiting it to a specific

count or counts, unless the elements of the offense and the evidence support its application

to all counts. This is almost a tautology: The instruction should be given only where proper.

And because knowledge was not an element of Count 1, the court should have made clear

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to the jurors that the instruction was not applicable to that count. Therefore, we conclude that

defendant has satisfied the first two requirements for plain error review by showing that there

was error and that the error was plain.

We find it a much closer question whether defendant has shown that the error affected

his substantial rights. As the government notes, the jury was correctly instructed that the

necessary mental element for Count 1 was wilfulness, and that term was appropriately

defined. In Hanzlicek we adopted the reasoning of United States v. Stone, 9 F.3d 934, 937-

42 (11th Cir. 1993), to reach the conclusion that error in giving a deliberate ignorance

instruction is harmless if the prosecution presented sufficient evidence of actual knowledge.

While that precise holding in the circumstances of the instant case might apply to Counts 2

and 3 but does not apply to Count 1, we think that the rationale underlying that holding does

apply to Count 1. We need not here recite that rationale in detail. We simply observe that

the reasoning we adopted there was based on the premise of jury competence to “disregard

an option simply unsupported by the evidence.” Stone, 9 F.3d at 939 (quoting Sochor v.

Florida, 504 U.S. 527, 538 (1992)). Thus, we concluded in Hanzlicek, as the Eleventh

Circuit had in Stone, that it is reasonable to presume that jurors will scrutinize the evidence,

realize when a deliberate ignorance instruction has no factual support, and not base a verdict

on the erroneously given instruction. For this reason, we have considerable doubt whether

under the specific circumstances it is reasonable to believe that the defendant was prejudiced

by the instruction. Because knowledge was not an element of Count 1, the instruction may

have caused some confusion as the jurors deliberated that count, but common sense would

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lead the jurors to realize that the instruction simply had no application to the question

whether the defendant had unlawfully engaged in the business of selling firearms without a

license.

In any event, we need not decide whether the error in not informing the jury that the

instruction applied only to the other counts affected a substantial right of the defendant

because we conclude that defendant cannot satisfy the fourth element of the plain error

standard. Because we do not think it very likely that the jurors were actually led astray by

what was, as to Count 1, a merely extraneous and irrelevant instruction, the error did not

seriously affect the fairness of the trial.

As to Counts 2 and 3, which charged Mr. McConnel with selling a gun to a convicted

felon, we find no error, and certainly no prejudice. The jurors heard a recording of a

telephone conversation in which Schuppan told defendant that Schuppan was a convicted

felon. Obviously, this evidence was sufficient to support the requisite finding of knowledge

on these counts, and under Hanzlicek, any error in giving the deliberate ignorance instruction

was harmless, given this evidence of actual knowledge. But there was no error.

As to counts 2 and 3, the instruction was properly given because defendant denied

knowledge and there was evidence to show that he may have engaged in deliberate acts to

avoid actual knowledge. See United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th

Cir. 2000). As noted, the evidence showed that Schuppan told defendant directly that he was

a felon. Defendant in his testimony said that Schuppan later told him that had been a lie.

Accepting for purpose of this argument that defendant testified truthfully (and of course

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defendant so argues), these conflicting statements on the point are enough to support the

decision to give the instruction. Defendant had experience as a criminal defense lawyer

(before he was disbarred) and as a private investigator (and self-described “professional

snoop”). Schuppan admitted to defendant that he was a felon. Then he denied it, if we

assume defendant’s testimony to have been truthful, which we must assume for this issue to

have any meaning. Faced with these contradictory statements, defendant chose not to look

further. And that meant ignoring the first statement, the admission. We see no error in

letting the jury decide whether only a person who did not want to know the truth could accept

the second statement and ignore the first without any further inquiry.

Even if this was error, it is not plain error for the reasons we have given.

IV
Impeachment evidence

At trial, as the discussion supra suggests, the jurors were presented with conflicting

accounts from Mr. McConnel and from the government’s key witness, Mr. Schuppan, on

some of the important events underlying the charges. Mr. McConnel argues that he was

unfairly prejudiced in this credibility battle by the trial judge’s decision to permit the

government to introduce as impeachment evidence the fact of his prior conviction on two

misdemeanor charges.

Mr. McConnel had been admitted to the Oklahoma Bar in 1968. In 1985 he had been

suspended from the bar for four years following his federal conviction on two misdemeanor

counts of using tax information for purposes other than preparation of tax forms. The IRS

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investigation showed that defendant had paid his lower income clients an advance on their

pending tax refunds in exchange for a percentage of the refund. In implementing this

scheme, defendant had clients sign power of attorney forms and, in some cases, blank tax

returns. The convictions came as the result of a plea bargain, pursuant to which it appears

that other more serious charges may have been dropped.5

At trial in the instant case, the government filed a notice of intent to use defendant’s

prior convictions as impeachment evidence should defendant choose to testify. This notice

was required under Fed. R. Evid. 609(b) because the convictions were more than ten years

old.6 The defendant filed an objection and the court ruled that the convictions would not be

5
See In re McConnel, 868 P.2d 471, 472, 473, 476 (Okla. 1994), in which Mr.
McConnel’s petition for reinstatement to the bar was denied. McConnel never was
reinstated with the Oklahoma Bar.
6
That rule provides, in pertinent part:

Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a
crime shall be admitted, subject to Rule 403, if the crime was punishable by
death or imprisonment in excess of one year under the law under which the
witness was convicted, and evidence that an accused has been convicted of
such a crime shall be admitted if the court determines that the probative
value of admitting this evidence outweighs its prejudicial effect to the
accused; and

(2) evidence that any witness has been convicted of a crime shall be
admitted if it involved dishonesty or false statement, regardless of the
punishment.

(b) Time limit. Evidence of a conviction under this rule is not admissible if

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admitted under Rule 609. Later during the trial, the government filed a motion to admit

evidence of the underlying conduct and the bar suspension, but not the convictions

themselves, under Fed. R. Evid. 608.7 Although counsel for the government specifically said

that the government was not seeking to admit evidence of the convictions with this second

argument, in granting the government’s motion in a ruling from the bench, the district judge

said that evidence of the convictions would be allowed. In response to this ruling, no doubt

a period of more than ten years has elapsed since the date of the conviction
or of the release of the witness from the confinement imposed for that
conviction, whichever is the later date, unless the court determines, in the
interests of justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its prejudicial
effect. However, evidence of a conviction more than 10 years old as
calculated herein, is not admissible unless the proponent gives to the
adverse party sufficient advance written notice of intent to use such
evidence to provide the adverse party with a fair opportunity to contest the
use of such evidence.

Fed. R. Evid. 609.
7
That rule provides, in pertinent part:

Evidence of Character and Conduct of Witness
....
(b) Specific instances of conduct. Specific instances of the conduct of a
witness, for the purpose of attacking or supporting the witness' character for
truthfulness, other than conviction of crime as provided in rule 609, may not
be proved by extrinsic evidence. They may, however, in the discretion of
the court, if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness' character for
truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.

Fed. R. Evid. 608(b).

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as a matter of trial strategy, defendant admitted the bar suspension and the underlying

misdemeanor convictions on direct examination.

Ordinarily we review decisions to admit or exclude evidence under the abuse of

discretion standard. E.g., United States v. Davis, 40 F.3d 1069, 1073 (10th Cir. 1994). But

the government argues that in this instance the defendant has waived his right to object to the

trial judge’s ruling by opting to introduce the evidence himself. We agree.

In Ohler v. United States, 529 U.S. 753 (2000), the Court held that a criminal

defendant’s tactical decision to introduce evidence of his prior conviction waives the right

to appeal the district court’s ruling that the prosecution could use the evidence as

impeachment on cross-examination. Although that case was decided under Rule 609 and this

case arises under Rule 608(b), the government contends that the waiver principle should

apply under both rules in the same way. We conclude that the extension of the waiver rule

of Ohler from Rule 609 to Rule 608(b) is compelled by logic because the issues are virtually

indistinguishable in their substance.8

V
Sentencing issues

Mr. McConnel contends that his Sixth Amendment rights were violated when the

8
We note that Mr. McConnel argues that the government’s tactic was a
circumvention of Fed. R. Evid. 609(b) and its more specifically applicable provisions.
We are aware of some cases on the interplay between Rules 608 and 609. See Elcock v.
Kmart Corp., 233 F.3d 734, 751-54 (3d Cir. 2000); United States v. Hurst, 951 F.2d 1490
(6th Cir. 1991); State v. Hoverson, 2006 ND 49, 710 N.W.2d 890, 895-898 (N.D. 2006).
We do not reach the merits of the issue and express no opinion on whether Rule 609, as
the more specifically applicable rule, precludes admission of evidence of underlying
conduct under Rule 608(b).

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district court, following the Guidelines promulgated by the United States Sentencing

Commission, made findings of fact at the sentencing stage which resulted in a longer term

of confinement than he otherwise would have been subject to under the Guidelines.

Sentencing took place before the landmark decision of United States v. Booker, 543 U.S. 220

(2005), but defendant raised this argument below, relying on Apprendi v. New Jersey, 530

U.S. 466 (2000). As Booker has made clear, a criminal defendant’s right to trial by jury is

violated when a district court bases sentencing decisions in a mandatory Guidelines system

on facts found by the court instead of the jury. We have recognized two kinds of Booker

error, constitutional and non-constitutional. See United States v. Gonzalez-Huerta, 403 F.3d

727, 731 (10th Cir. 2005) (en banc). The errors alleged here are constitutional. As a result,

the burden is on the government to show that the errors were harmless beyond a reasonable

doubt. See United States v. Riccardi, 405 F.3d 852, 875 (10th Cir.), cert. denied, 126 S.Ct.

299 (2005).

Mr. McConnel contends that the district court made three fact findings at sentencing

that resulted in increasing his offense level, and thus increased his punishment in violation

of the Sixth Amendment and the holding in Booker. First, the district court increased

defendant’s offense level by four under USSG § 2K2.1(b)(1)(D)9 based on a finding that his

offense involved 20 firearms (the court denied the government’s request for a finding that

over 60 guns were involved in the offense, which would have resulted in a 6 level increase).

But that provision applies to a quantity of 13-24 firearms. The indictment alleged 16

9
The district judge used the 2000 edition of the Guidelines Manual.

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firearms, and the jury verdict on Counts 2 and 3, involving specific sales to Mr. Schuppan,

the government informant, included a finding that a total of 16 firearms had been sold on

those occasions. Therefore, the trial court’s finding of 20 firearms, instead of only 16, did

not increase the offense level and so had no effect on the sentence. We need not consider

this contention further. See United States v. Corchado, 427 F.3d 815, 820-21 (10th Cir.

2005), cert. denied, 126 S.Ct. 1811 (2006) (no constitutional Booker error occurs where

judicial fact-finding did not enhance the actual sentence); United States v. Yazzie, 407 F.3d

1139, 1144 (10th Cir.), cert. denied, 126 S.Ct. 303 (2005) (same).

The district judge also increased Mr. McConnel’s offense level by two for obstruction

of justice under USSG § 3C1.1 based on her finding that he had committed perjury. Finally,

the court increased his criminal history score from I to II based on a finding that defendant

had sold another gun after his conviction in this case, while awaiting sentencing. These

findings were made by the judge by a preponderance of the evidence. After making these

findings, the court sentenced the defendant to 71 months, the top of the resulting guideline

range. Because these findings by the court do appear to have affected the ultimate sentence,

these were constitutional Booker errors.

We briefly review the evidence and findings regarding these two enhancements. As

we have discussed, to support Count 2 and Count 3, the government was required to show

that defendant sold guns to Schuppan knowing or having reason to believe that he was a

convicted felon or had felony charges currently pending. The government produced

evidence in the form of Schuppan’s testimony and the recorded telephone call setting up the

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first sale of firearms from defendant to Schuppan to show that defendant was told that

Schuppan was a convicted felon. In his defense, Mr. McConnel testified that Schuppan had

later told him otherwise. The district judge found that Mr. McConnel had committed perjury

by so testifying.

The other sentencing enhancement was based on defendant’s sale of a gun after his

conviction and while awaiting sentencing in this case. At the sentencing hearing three

witnesses testified that defendant sold a pistol to one of them in August or September of 2002

(approximately two months after the trial had ended in guilty verdicts). At that time, because

of his conviction, defendant was barred from possessing firearms.

Although the district court’s enhancement of defendant’s sentence based on facts

found by the court under the preponderance of the evidence standard under the mandatory

Guidelines regimen that existed prior to Booker violated the defendant’s Sixth Amendment

rights, our cases applying Booker have endorsed an approach that is built on the same

foundation. We have instructed the district courts that they should begin the sentencing

process with the same procedures, calculating the applicable Guidelines range through the

same process – including findings by the court under the preponderance of the evidence

standard – but with the recognition that the Guidelines are now advisory only and that

calculating the Guidelines range is not the conclusion of the process. See United States v.

Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006).

Accordingly, we have found constitutional Booker errors to be harmless beyond a

reasonable doubt where the record convinces us that remand would be futile. For example,

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we have held that where the district court exercised its limited discretion under the

mandatory Guidelines system to impose the most severe punishment lawful under the

circumstances of the case, there is no reason to believe that the court would exercise its now

greater discretion to be more lenient towards the defendant. See United States v. Waldroop,

431 F.3d 736, 742-43 (10th Cir. 2005).

Here we are faced with two Booker errors, the perjury finding and the finding that

defendant committed another violation while awaiting sentencing. The district judge made

a detailed, written statement of the reasons for her decisions. She found specifically that the

offense committed after conviction showed contempt for the judicial system.

The record shows that the judge used the limited discretion available to her pre-

Booker to reach the highest sentence she could because of her view of the seriousness of the

offenses and the likelihood of recidivism shown by the contemptuous act following

conviction. That discretion “is the same sort of flexibility in sentencing that judges now

possess in a post-Booker scheme.” United States v. Cunningham, 405 F.3d 497, 504 (7th Cir.

2005). There is thus “no reason to think the judge would exercise [her] now greater

discretion to reduce the sentence.” United States v. Riccardi, 405 F.3d 852, 876 (10th Cir.),

cert. denied, 126 S.Ct. 299 (2005). Accordingly, we conclude that the Booker errors were

harmless beyond a reasonable doubt.

The judgment and sentence are therefore AFFIRMED.

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