*

 This case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).

F I L E D

United States Court of Appeals

Tenth Circuit

July 29, 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILMA JEAN CLARK,

Defendant-Appellant.

No. 04-3116

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 03-40109-01-SAC)

Submitted on the briefs:*

Eric F. Melgren, United States Attorney, District of Kansas and James A. Brown,

Assistant United States Attorney, Topeka, Kansas for Plaintiff-Appellee.

David J. Phillips, Federal Public Defender, District of Kansas and Ronald E.

Wurtz, Assistant Federal Public Defender, Topeka, Kansas for DefendantAppellant.

Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.
- 2 -

LUCERO, Circuit Judge.

In this direct criminal appeal, Wilma Clark argues that the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), renders

unconstitutional her sentence for drug distribution. We consider her argument in

light of the Supreme Court’s recent decision in United States v. Booker, 125 S.Ct.

738 (2005). Because the court below increased Clark’s term of imprisonment

based on facts that it found by a preponderance of the evidence, constitutional

error plagues Clark’s sentence. Applying plain error review, we conclude that the

sentence imposed affects Clark’s substantial rights and seriously affects the

fairness, integrity, and public reputation of judicial proceedings. We therefore

REMAND for resentencing.

I

Clark pled guilty to knowingly and intentionally distributing more than five

grams of a mixture containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). 

At the change of plea hearing, she admitted to selling 5.48 grams of crack cocaine

on June 28, 2000. Based solely on the facts to which she pled, Clark faced an

offense level of 26 and a Guideline range of 110-137 months’ incarceration. 

U.S.S.G. § 2D1.1(c)(7).
- 3 -

Additional conduct was detailed in the pre-sentence report (“PSR”). 

According to the PSR, state law enforcement officials discovered Clark either

distributing or possessing crack cocaine on six separate occasions in 2003. The

U.S. Probation Office recommended that the district court find Clark “responsible

for” 25.45 grams of crack cocaine, which is the sum of the 5.48 grams that she

distributed on June 28, 2000 and the amounts that she either possessed or

distributed in 2003. Additionally, the PSR reported that on October 4, 2001,

officers discovered a pistol and ammunition for various firearms in Clark’s purse

while executing a search warrant at her residence. Clark stated that she was

holding the gun for a man who had gone to purchase cocaine, and she admitted to

having sold cocaine herself two days earlier, but officers did not discover cocaine

in the home. The PSR recommended enhancing Clark’s base offense level for

possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). 

Clark objected to using the 2003 drug-related incidents to calculate her

base offense level, arguing that the span of time between the offense of

conviction and the 2003 events precluded considering the latter as relevant

conduct for the former. Similarly, she argued that insufficient evidence linked the

offense of conviction to her possession of a firearm fifteen months later, and

therefore objected to an enhancement of her offense level for firearm possession. 

Overruling Clark’s objections, the district court adopted the PSR’s findings.
1

 The dissent asserts that Clark is barred from raising this argument because

she waived her right to raise a Booker argument on appeal in her plea agreement. 

However, the government neither filed a motion to enforce Clark’s plea

agreement, see United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en

banc) (per curiam), nor argued in its brief that we should dismiss Clark’s appeal

on the basis of her appellate rights waiver. See United States v. Clayton, No.

04-3394, slip op. at 6 (10th Cir. July __, 2005). Accordingly, we decline to

- 4 -

Because it found that Clark possessed at least 20 grams of cocaine base, the

district court used a base offense level of 28. The court then enhanced the

offense level to 30 because Clark possessed a firearm, and ultimately settled on

an offense level of 27 after including an adjustment for acceptance of

responsibility. At offense level 27, and with a criminal history category of five,

Clark faced a sentencing range of 120-150 months. The district court accepted

the government’s recommendation and sentenced her at the bottom of the range to

120 months’ incarceration. 

II

Clark argues that the district court violated her Sixth Amendment rights by

imposing a sentence based on facts that it found by a preponderance of the

evidence pursuant to the then-mandatory Sentencing Guidelines . Specifically, she

asserts that, in light of the Supreme Court’s decision in Blakely, it was

constitutional error to use uncharged drug-related conduct to calculate her base

offense level and to then enhance the offense level by finding that she possessed a

firearm.1

 We construe Clark’s argument as a challenge to her sentence under
address the issue, as it is not jurisdictional in nature. See Hahn, 359 F.3d at

1322-25.

- 5 -

Booker. See United States v. Clifton, 406 F.3d 1173, 1175 n.1 (10th Cir. 2005)

(this court “must apply the holdings in Blakely and Booker to all cases in which a

defendant properly raised an issue under either case.”). Clark did not raise a

Booker challenge below. Consequently, we review the district court’s sentencing

decision for plain error under the four-part test articulated in United States v.

Olano, 507 U.S. 725 (1993), which asks (1) is there error; (2) is the error plain;

(3) does it affect substantial rights; and (4) does it seriously affect the fairness,

integrity, or public reputation of judicial proceedings. United States v. GonzalezHuerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc).

A district court commits constitutional Booker error when it “applies the

Guidelines in a mandatory fashion, makes factual findings (other than the fact of

prior convictions), and imposes a sentence above the maximum that would apply

in the absence of such findings.” United States v. Yazzie, 407 F.3d 1139, 1144

(10th Cir. 2005) (emphasis added). Clark pled guilty pursuant to a plea

agreement to possession with intent to distribute more than 5 grams of cocaine

base. In exchange for her plea, the government agreed to recommend a

three-level downward adjustment for acceptance of responsibility under U.S.S.G.

§ 3E1.1. At her plea hearing, Clark admitted to possessing 5.48 grams of cocaine
- 6 -

base, a drug quantity which corresponds to a base offense level of 26 under

U.S.S.G. § 2D1.1(c)(7). When combined with Clark’s criminal history category,

an offense level of 26 exposed her to a guidelines range of 110-137 months. 

After subtracting three levels for acceptance of responsibility, however, Clark’s

maximum sentencing range based solely on facts to which she pled was 84-105

months. 

Clark’s acceptance of responsibility adjustment must be included in our

calculation of her sentencing range to comport with the Sixth Amendment. This

is so because under the pre-Booker mandatory guidelines regime, as the court

explained in United States v. Colussi, 22 F.3d 218, 219 (9th Cir. 1994):

Unlike departures under the Sentencing Guidelines, adjustments to

the offense level are characteristically mandatory. The Guidelines

use permissive language (i.e. “may”) in the context of departures. 

See U.S.S.G. § 5K2.0. In the context of adjustments, the Guidelines

use mandatory language. See, e.g., U.S.S.G. § 3A1, U.S.S.G. § 3B1,

U.S.S.G. § 3C1; see also United States v. Mariano, 983 F.2d 1150,

1157 (1st Cir. 1993).

Section 3E1.1 thus states

(a) If the defendant clearly demonstrates acceptance of responsibility

for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the

offense level determined prior to the operation of subsection (a) is

level 16 or greater, and upon motion of the government stating that

the defendant has assisted authorities in the investigation or

prosecution of his own misconduct by timely notifying authorities of

his intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and permitting the
- 7 -

government and the court to allocate their resources efficiently,

decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1(emphasis added).

Although “[a] defendant who enters a guilty plea is not entitled to an

adjustment under this section as a matter of right,” § 3E1.1. cmt. n.3, a defendant

who pleads guilty and clearly accepts responsibility under the pre-Booker

mandatory sentencing regime most certainly was so entitled. Once a district court

has found as a matter of fact that a defendant has accepted responsibility within

the meaning of § 3E1.1, the court has no discretion to withhold the sentencing

adjustment. See United States v. Marquez, 337 F.3d 1203, 1210 (10th Cir. 2003)

(reversing district court’s denial of one-level reduction under § 3E1.1(b) and

stating that “a defendant who ‘clearly demonstrates acceptance of responsibility

for his offense’ is entitled to a . . . reduction in his offense level.”). As the Fifth

Circuit has unequivocally asserted, once an affirmative determination of

acceptance of responsibility has been made, “no sentencing discretion remains.” 

United States v. Tello, 9 F.3d 1119, 1124 (5th Cir. 1993); see also United States

v. Rice, 184 F.3d 740, 742 (8th Cir. 1999) (“[I]f the sentencing court finds that

the defendant accepted responsibility for his or her offense and entered a timely

guilty plea, then the defendant is automatically entitled to the full three-level

reduction available under § 3E1.1.”); United States v. Townsend, 73 F.3d 747,

755 (7th Cir. 1996) (“The language of § 3E1.1 is mandatory, not permissive:
- 8 -

When a defendant demonstrates that he is qualified for the decrease, the guideline

orders the decrease.”); United States v. Talladino, 38 F.3d 1255, 1264 (1st Cir.

1994) (“The language of [§ 3E1.1(b)] is absolute on its face. It simply does not

confer any discretion on the sentencing judge to deny the . . . reduction so long as

the [section’s] stated requirements are satisfied.”). Thus, when analyzing Booker

error, “the maximum [sentence] that would apply in the absence of [impermissible

factfinding],” Yazzie, 407 F.3d at 1144, is the guideline range supported by the

facts the defendant admitted reduced by his or her acceptance of responsibility.

This makes sense because for purposes of judicial and prosecutorial

efficiency, the Sentencing Commission made the manner of conviction a factor in

determining punishment by offering a defendant who pleads guilty a sentencing

“discount.” As the court recognized in United States v. Bonanno, 146 F.3d 502,

512-13 (7th Cir. 1998), the purpose of § 3E1.1 is “to reward those who plead

guilty – saving the judiciary and Government from the time, expense and effort of

trial – or who take some other equivalently concrete act, such as pretrial payment

of full restitution.” (quotations omitted). It goes without saying that one of the

primary reasons a defendant pleads guilty is to obtain the acceptance of

responsibility reduction. Where the court finds a defendant has clearly accepted

responsibility in a timely fashion, therefore, the maximum guidelines sentence
2

 Keeping the acceptance of responsibility reduction constant, it is clear

that the two enhancements challenged in this case increased Clark’s sentence

above the maximum she would have received in their absence. With the

acceptance of responsibility reduction, Clark faced a range of 84-105 months

without the enhancements (level 23) and a range of 120-150 months with the

- 9 -

authorized by the defendant’s guilty plea necessarily includes the three-point

reduction.

In the present case, Clark pled guilty pursuant to a plea agreement in which

the government agreed to recommend to the district court that Clark be given a

three-point reduction for acceptance of responsibility. In other words, the

acceptance of responsibility reduction was Clark’s to lose. See § 3E1.1. cmt. n.3

(“Entry of a plea of guilty prior to the commencement of trial combined with

truthfully admitting the conduct comprising the offense of conviction . . . will

constitute significant evidence of acceptance of responsibility”). The PSR

mirrored the government’s recommendation and, in fashioning a sentence, the

district court accepted these recommendations. Without the sentencing

enhancements based on judge-found facts, but with the acceptance of

responsibility adjustment, Ms. Clark faced an offense level of 23 with a

mandatory guidelines range of 84-105 months. We therefore conclude that Clark

received a sentence exceeding the maximum that would have applied had the

district court not made findings with respect to the quantity of drugs or possession

of a firearm.2
enhancements (level 27). Without the reduction, she faced a range of 110-137

months without the enhancements (level 26) and 151-188 months with the

enhancements (level 30).

- 10 -

In Yazzie, we held that constitutional error does not occur when the

sentencing court increases the sentencing range by way of judge-found facts

coupled with the mandatory application of the Guidelines but the actual sentence

imposed is within the non-enhanced range. Yazzie, 407 F.3d at 1145. We did not

have occasion in Yazzie, however, to fully discuss what constitutes the

non-enhanced range. In Yazzie, the district court rejected a three-level

acceptance of responsibility reduction similar to the one issued in this case. Thus,

in Yazzie, the PSR-recommended range constituted the enhanced range, and the

non-enhanced range was simply the range that would have applied absent

adoption of the PSR’s recommended enhancements.

Here we face a very different scenario. The Government and the PSR both

recommended, and the district court accepted, a three-level acceptance of

responsibility reduction. This reduced sentencing range constitutes the

non-enhanced range in this case. Because it is clear that the district court would

have applied the three-level reduction even in the absence of the enhancements, it

would be inequitable to exclude it from the non-enhanced sentence. Moreover,

excluding the recommended reduction from the non-enhanced sentence, in light of

the district court’s determination to apply the reduction regardless of the
- 11 -

applicability of the enhancements, simply misreads the record. Therefore, we

conclude the non-enhanced range in this case is 84-110 months’ incarceration.

Constitutional Booker error plagues Clark’s sentence, and all constitutional

Booker errors satisfy the first two prongs of plain error review. To meet her

burden on the third prong, Clark must show “a reasonable probability that, but for

the error claimed, the result of the proceeding would have been different.” 

United States v. Dazey, 403 F.3d 1147 (10th Cir. 2005). Our recent jurisprudence

provides at least two ways that a defendant may demonstrate such a reasonable

probability. First, a defendant may show that, when viewing the facts of her case

in light of 18 U.S.C. § 3553(a)’s sentencing factors, the district court “would

reasonably impose a sentence outside the Guidelines range.” Dazey, 403 F.3d at 

1175. Second, a defendant aggrieved by constitutional Booker error may show

that her substantial rights were affected if she establishes a “reasonable

probability that a jury applying a reasonable doubt standard would not have found

the same material facts that a judge found by a preponderance of the evidence.” 

Id.

There is a reasonable probability that a jury would not find beyond a

reasonable doubt that Clark was responsible for at least 20 grams of crack

cocaine. Under the Guidelines, a sentencing court in calculating the quantity of

drugs involved in an offense should consider all quantities stemming from a
3

 Additionally, an offense may be relevant conduct to the offense of

conviction if the two offenses constitute a “common scheme or plan.” U.S.S.G.

§ 1B1.3(a)(2). There is no evidence in the record to support a finding that any of

the 2003 drug offenses or the conduct surrounding firearm possession in 2001

were part of a “common scheme or plan” with respect to the offense of

conviction. We consider at length whether the various offenses were part of the

“same course of conduct,” because “[o]ffenses that do not qualify as part of a

common scheme or plan may nonetheless qualify as part of the same course of

conduct . . . .” § 1B1.3, cmt. 9(B).

- 12 -

defendant’s “relevant conduct.” U.S.S.G. § 2D1.1, cmt. n.12 (“Types and

quantities of drugs not specified in the count of conviction may be considered in

determining the offense level. See § 1B1.3(a)(2) (Relevant conduct).”). Whether

a specific offense constitutes relevant conduct to the offense of conviction

depends in substantial part on whether the offenses form the “same course of

conduct,” which in turn depends on “the degree of similarity of the offenses, the

regularity (repetitions) of the offenses, and the time interval between the

offenses.” U.S.S.G. § 1B1.3, cmt. 9(B).3

Clark argues that the time interval separating the offenses alone –

approximately three years – justifies the conclusion that the offenses were not

part of the same course of conduct. She also argues that her alleged offenses did

not become “regular” until the spring of 2003. Clark’s offense of conviction

occurred on June 28, 2000, when she sold 5.48 grams of crack cocaine. The PSR

did not report, and the district court did not find, that Clark sold any quantity of

any drug in either 2001 or 2002. The court did find that Clark sold 19.97 grams
- 13 -

of crack cocaine on five separate occasions between May 20, 2003 and September

23, 2003. Although the offense of conviction and the 2003 events all involved

sales of small user amounts of crack cocaine, and therefore are quite similar, there

is a reasonable probability that a jury would not find the showing of similarity

sufficiently strong to compensate for the absence of temporal proximity or

regularity. See § 1B1.3, cmt. 9(B). (“When one of the above factors is absent, a

stronger presence of at least one of the other factors is required.”). Consequently,

there is a reasonable probability that a jury would not find beyond a reasonable

doubt that Clark is responsible for over 20 grams of crack cocaine, leading us to

conclude that the district court’s drug quantity finding affected Clark’s substantial

rights.

The district court also found that Clark possessed a firearm in relation to

her offense, and enhanced her sentence two levels under U.S.S.G. § 2D1.1(b)(1). 

When seeking an enhancement under that Guideline provision, the government

bears the burden of proving “that a temporal and spatial relation existed between

the weapon, the drug trafficking activity, and the defendant.” United States v.

Roederer, 11 F.3d 973, 982 (10th Cir. 1993). At first glance, it may appear that

the government must show proximity between possession of a firearm and the

offense of conviction to support a § 2D1.1(b)(1) enhancement. However, courts

may apply the firearm-possession adjustment if the government proves that a
- 14 -

close nexus exists between possession of a firearm and any drug offense, provided

that the drug offense constitutes “relevant conduct” with regard to the offense of

conviction. See id. (“Even when a guilty plea is entered on a single count of

possession, the court must nevertheless look to the entire relevant conduct in

determining the sentence. That conduct . . . includes possession of a gun while

engaging in drug sales related to, though distinct from, the crime of conviction.”). 

Thus, the questions for the fact finder in this case are whether Clark’s possession

of a weapon and ammunition on October 4, 2001 was closely related to a drug

offense, and whether that drug offense is relevant conduct with respect to the

offense of conviction on June 28, 2000.

In support of its argument that Clark possessed a weapon in relation to a

drug offense, the government points to Clark’s admissions to the investigating

officers that she was holding the gun until its owner returned from purchasing

crack cocaine and that Clark herself had sold cocaine two days earlier. Clark

counters that even if she possessed a gun in relation to a drug offense, that

offense is dissimilar from the offense of conviction, the two offenses are

insufficiently regular, and they occurred over a year apart from each other;

therefore, she argues, they do not constitute the same course of conduct. As to

similarity, she states that the offense of conviction involved the sale of cocaine

whereas officers did not discover any cocaine in her residence when they
- 15 -

discovered the firearm. Furthermore, two isolated events fifteen months apart,

she argues, are not sufficiently regular or temporally proximate to justify the

enhancement.

We conclude that there exists a reasonable probability that a jury would

find that the fifteen month interval between the offenses renders them temporally

distant, and that under the facts of this case Clark’s drug-related activity was

insufficiently regular. Pursuant to the Guidelines, then, a jury finding that the

offense of conviction and Clark’s possession of a firearm in relation to drug

trafficking were part of the same course of conduct would require a strong

showing of similarity between the two offenses. Clark’s admission to selling

cocaine two days before officers found her in possession of the firearm, and the

fact that the weapon belonged to a man who was in the course of purchasing

cocaine, would not have persuaded a jury that the two offenses were sufficiently

similar to overcome the temporal distance between, and irregularity of, the two

offenses. Moreover, applying the third Olano factor less rigidly, as we must, we

are confident that there is a reasonable probability that a jury would not have

found that Clark’s possession of the firearm was part of the same course of

conduct as her offense of conviction. See Dazey, 403 F.3d at 1174 (“We conduct

this analysis less rigidly when reviewing a potential constitutional error.”). Thus,
4

 The relevant conduct section, U.S.S.G. § 1B1.3(a)(2), includes an offense

only if three prerequisites are met: (1) the offense in question involved conduct

described in §§ 1B1.3(a)(1)(A) and (B); (2) the offense would require grouping

with the offense of conviction under U.S.S.G. § 3D1.2(d); and (3) the offense is

part of the “same course of conduct” or “common scheme or plan” as the offense

of conviction. United States v. Taylor, 97 F.3d 1360, 1363 (10th Cir. 1996). All

three prerequisites must apply for an offense to qualify as relevant conduct. 

Because we conclude that neither the alleged 2003 drug activity nor the firearm

possession form part of the “same course of conduct” or “common scheme or

plan” as the offense of conviction, we need not address the first two prerequisites.

- 16 -

the district court’s decision to adjust Clark’s sentence pursuant to § 2D1.1(b)(1)

affected her substantial rights.4

Having concluded that Clark has met her burden under the third factor of

the plain error test, we now determine whether, under the fourth factor, the error

seriously affected the fairness, integrity, or public reputation of judicial

proceedings. Gonzalez-Huerta, 403 F.3d at 736. Because this case involves

constitutional Booker error, we apply the fourth prong standard less rigidly. 

Clifton, 406 F.3d at 1182. To determine whether to exercise our discretion and

notice the error, we consider “the strength or lack of evidence supporting the

defendant’s sentence under the Guidelines.” Id. We also consider whether

“evidence in the record demonstrates that the district court would impose the

same sentence even under an advisory Guidelines system.” United States v.

Lawrence, 405 F.3d 888, 908 (10th Cir. 2005).
- 17 -

In the sentencing proceedings below, Clark forcefully disputed the court’s

findings with respect to the amount of drugs and possession of a firearm. See

Dazey, 403 F.3d at 1178 (concluding that fourth prong is met, in part, because

“Mr. Dazey vigorously contested the judge-found facts that enhanced his

sentence.”). Moreover, the evidence in the record by no means leads ineluctably

to the conclusion that either the drug sales in 2003 or the drug activity associated

with possession of a weapon in October 2001 constitute relevant conduct with

respect to the offense of conviction; rather, the evidence is easily susceptible to

differing interpretations by a fact finder. Furthermore, we conclude that there is a

reasonable likelihood that the court would impose a lower sentence on remand. 

The court imposed sentence at the very bottom of the Guidelines range,

suggesting that if initially afforded discretion, the court may have imposed a

lower sentence. Additionally, counsel argued at the sentencing hearing that Clark

“was involved in these incidents because of her addiction. She doesn’t move

drugs. . . . She owns up to what she does better than almost any client I think I’ve

ever seen.” On that basis, and the fact that Clark has “serious medical problems,”

Clark sought placement at the Fort Worth Medical Center, and the district court

made that recommendation. Such arguments would be relevant to the district

court’s exercise of discretion when imposing sentence in light of the § 3553(a)

factors.
- 18 -

Our final inquiry under the fourth prong is “whether the Booker error

substantially increased the defendant’s sentence.” Clifton, 406 F.3d at 1182. Had

the district court not increased Clark’s sentence based on its unconstitutional

findings, Clark likely would have received a sentence of 84 months. This 84-

month sentence is based on the facts to which Clark pled, and accounts for the

government’s recommendations of an acceptance of responsibility reduction and a

sentence at the bottom of the applicable range, which the district court accepted. 

Clark’s 120-month sentence represents a substantial increase from what she likely

would have received had the district court not committed Booker error. 

The fourth prong of Olano speaks in the disjunctive: Our inquiry is (1)

does the gulf between the constitutional sentence and the unconstitutional

sentence undermine the fairness of the proceedings below; (2) does it impact the

overall integrity of the sentencing process; or (3) does it implicate the public

reputation of judicial proceedings. See Olano, 507 U.S. at 732 (“the court should

not exercise that discretion unless the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”) (emphasis added);

Gonzalez-Huerta, 403 F.3d at 736. We are not prepared to say that an

unconstitutionally imposed sentence leading to three years’ additional

incarceration is fair; nor are we prepared to say that consigning someone to three

years in prison on an unlawful basis does not impact the integrity of the process;
5

 Clark also argues that insufficient evidence supported the district court’s

findings with respect to the quantity of drugs and firearm possession. Because we

vacate the sentence and remand for resentencing on Booker grounds, we need not

address the sufficiency of the evidence argument.

- 19 -

finally, we doubt that the public would retain confidence in a system that would

countenance such an unconstitutional sentence – thus the public reputation of

judicial proceedings is implicated.

Defendants are not required to prove all three elements of the fourth prong. 

Even though one element would suffice, we conclude that Clark has met her

burden under all three, requiring us to remand.5

III

We REMAND this matter to the district court with instructions to vacate

defendant’s sentence imposed in this case and resentence defendant in accordance

with Booker.
1

 If a waiver of appellate rights is enforceable, we are precluded from

reaching the merits of an appeal. United States v. Hahn, 359 F.3d 1315, 1329

n.15 (10th Cir. 2004) (en banc). Normally, we would expect the Government to

follow the procedure outlined in Hahn for enforcing a waiver of the right to

appeal:

henceforth, when a defendant who has waived his appellate rights in

a plea agreement files a notice of appeal and the government wishes

to enforce this waiver, the government will file a “Motion for

Enforcement of the Plea Agreement.” This motion will address the

three-prong enforcement analysis provided above, but not the

04-3116, United States v. Clark

O’BRIEN, dissenting.

I respectfully DISSENT from the majority’s opinion for these reasons: 1)

with limited exceptions (exceptions not including Blakely/Booker error) Clark

waived her right to appeal, her waiver is enforceable, and she cannot prevail on

the issues reserved from her waiver; and 2) even if her appeal waiver is

unenforceable, she presents only non-constitutional Booker error and her

arguments fail under the plain error test.

I. DISCUSSION

A. Waiver of Appellate Rights

(1) Waiver is enforceable

We need not reach the effect of United States v. Booker, 125 S.Ct. 738

(2005), if any, on Clark’s sentence because Clark, in her plea agreement, waived

her right to appeal on the basis of Booker.

1

 In her plea agreement, Clark stated
underlying merits of the defendant's appeal. The defendant will then

have the opportunity to respond. The Clerk of the Court will forward

the government's motion, and any responding briefs, to the panel. 

The parties will not be directed to brief the underlying merits of the

defendant's appeal.

If the panel finds that the plea agreement is enforceable, it will

summarily dismiss the appeal. If the panel finds the plea agreement

unenforceable, it will issue a ruling consistent with this finding. 

Hahn, 359 F.3d at 1328. In this case, I would excuse the Government from

complying with this procedure because of unique circumstances. Clark filed her

opening brief on July 16, 2004. The Government filed its answer brief on

September 16, 2004. Clark filed her reply brief on October 4, 2004. Booker was

not decided until January 12, 2005. Supplemental briefing was neither requested

nor ordered. Under these circumstances, where the Government had no reason to

suppose, during briefing of the merits of the appeal, that Booker would be decided

as it was (applying Blakely to invalidate the federal sentencing guidelines insofar

as they were mandatory) and that it would provide the analytic framework for our

review, see United States v. Clifton, 406 F.3d 1173, 1175 n.1 (10th Cir. 2005)

(“We must apply the holdings in Blakely and Booker to all cases in which a

defendant properly raised an issue under either case.”), we should rule on the

enforceability of the waiver as to the Booker issues even without a Government

motion. 

- 2 -

she “knowingly and voluntarily waives any right to any appeal . . . on any matter

in connection with [her] prosecution and sentence, except the defendant reserves

the right to appeal the district court’s findings relating to relevant conduct or the

applicability of a weapons enhancement under U.S.S.G. § 2D1.1(b).” (R. Vol. 1,

Doc. 39 at 5). Significantly, while Clark preserved her right to appeal specific

findings the district court made in applying the guidelines, she did not preserve

her right to challenge the propriety of the district court making such findings in
- 3 -

the first instance as part of a mandatory guideline regime, which is the practice

prohibited by Booker.

In determining whether to enforce a waiver of the right to appeal, we first

determine if the appeal falls within the scope of the appellate waiver. Hahn, 359

F.3d at 1325. Second, we ascertain whether the defendant’s waiver of appellate

rights was knowing and voluntary. Id. Third, we evaluate whether enforcement

of the appellate waiver would result in a miscarriage of justice because (1) the

district court relied on an impermissible factor such as race, (2) ineffective

assistance of counsel in negotiating the waiver renders the waiver invalid, (3) the

sentence exceeds the statutory maximum, or (4) the waiver is otherwise unlawful. 

Id. at 1325, 1327. We strictly construe the scope of appellate waivers, and “any

ambiguities in these agreements are read against the Government and in favor of a

defendant's appellate rights.” Hahn, 359 F.3d at 1325 (quotation marks and

citations omitted).

As to scope of the waiver, a defendant may waive her right to appeal based

on Booker thru a plea agreement with broad language. United States v. Green,

405 F.3d 1180, 1189 (10th Cir. 2005). Clark’s waiver is not unlike the waiver we

reviewed in Green. See id. at 1183 (“‘Defendant agrees to waive all appellate

rights except those relating to issues raised by the Defendant and denied by the
- 4 -

District Court regarding the application of the Sentencing Guidelines.’”). As we

said in Green:

Whether Defendant's sentence violated Booker does not relate to

“issues regarding the application of the Sentencing Guidelines”

within the meaning of Defendant's appellate rights waiver. The

phrase “the application of the Sentencing Guidelines” in the plea

agreement, does not refer to the arguments that (1) it was

constitutionally impermissible for the district court to engage in

factfinding by a preponderance of the evidence to enhance

Defendant's sentence beyond the Guidelines range that would

otherwise apply based on the facts that Defendant admitted during

the plea hearing; or (2) the district court's application of the

Sentencing Guidelines in a mandatory fashion was error. 

405 F.3d at 1189. See also United States v. Porter, 405 F.3d 1136, 1144 (10th

Cir. 2005) (“Supreme Court precedent is quite explicit that as part of a plea

agreement, criminal defendants may waive both rights in existence and those that

result from unanticipated later judicial determinations.”). Thus, Clark’s waiver

included Booker issues within its scope. 

As to whether Clark’s waiver was knowing and voluntary, “[w]hen

determining whether a waiver of appellate rights is knowing and voluntary, we

especially look . . . to whether the language of the plea agreement states that the

defendant entered the agreement knowingly and voluntarily . . . [and] for an

adequate [Rule] 11 colloquy.” Hahn, 395 F.3d at 1325. In her plea agreement,

Clark specifically stated she “knowingly and voluntarily” waived her right to an

appeal. (R. Vol. I, Doc. 39 at 5.) In her Petition to Enter Plea of Guilty, which
- 5 -

incorporated her plea agreement by reference, Clark reiterated she offered her

plea of guilty “freely and voluntarily . . . with full understanding of all the matters

set forth in . . . this petition . . . .” (Id.) Her counsel certified her offer to plead

guilty was “voluntarily and understandingly made.” (Id. at 7.) Finally, in its

Order Entering Plea, the court found Clark’s plea of guilty was entered “freely,

voluntarily . . . and with full understanding of its consequences.” (Id. at 8.) The

record thus demonstrates Clark’s waiver of her right to appeal was both voluntary

and intelligent, and it is not stripped of this character by subsequent developments

in the law. See Green, 405 F.3d at 1190 (“The Supreme Court has made it clear

that a defendant's decision to give up some of his rights in connection with

making a plea-- including the right to appeal from the judgment entered following

that plea-- remains voluntary and intelligent or knowing despite subsequent

developments in the law.”). 

As to whether enforcement of Clark’s appellate waiver would result in a

miscarriage of justice, the district court did not rely on an impermissible factor

like race when sentencing Clark and she did not raise an ineffective assistance of

counsel claim. This limits our Hahn “miscarriage of justice” analysis to whether

the sentence exceeds the statutory maximum or whether the waiver is otherwise

unlawful. Inasmuch as the phrase “‘statutory maximum’ in Hahn refers to the

upper limit of punishment that Congress has legislatively specified for the
- 6 -

violation of a given statute[,]” id. at 1194, and there is no dispute Clark’s

sentence fell beneath the statutory maximum, she cannot overturn her appellate

waiver on this basis. 

For a waiver to be “otherwise unlawful” according to Hahn, “the error must

seriously affect the fairness, integrity or public reputation of judicial proceedings

as that test was employed in United States v. Olano, 507 U.S. 725 (1993).” See

Hahn 395 F.3d at 1327 (internal quotation marks omitted). In making this

determination, we consider: 

whether the plea agreement stated the appropriate statutory

maximum, informed the defendant that he was giving up multiple

constitutional and appellate rights in exchange for concessions from

the government, and implied that the sentence would be imposed in

accordance with the guidelines then in effect. We also review

whether the defendant's sentence conforms with the terms of the plea

agreement and the defendant's understanding of the plea. 

United States v. Maldonado, - - F.3d - -, No. 04-3134, 2005 WL 1395112 at *2

(10th Cir. June 14, 2005). The record evinces no abridgement of this standard. 

Furthermore, as we discuss below, Clark makes no showing the court would have

sentenced her differently under a post-Booker advisory scheme. Consequently,

the fairness, integrity or public reputation of judicial proceedings is not

implicated by enforcement of her waiver of her right to appeal. See id. at *3-*4. 

Based on the foregoing, Clark’s waiver of her right to appeal on the basis of

Booker must be enforced. 
- 7 -

(2) Guidelines challenges fail clear error test

Inasmuch as Clark’s waiver of her right to appeal on the basis of Booker is

enforceable, we are left with only her reservations from the waiver—challenges to

the district court’s application of the guidelines. “[W]e review legal questions de

novo and we review any factual findings for clear error, giving due deference to

the district court's application of the guidelines to the facts.” United States v.

Doe, 398 F.3d 1254, 1257 (10th Cir. 2005) (internal quotation marks omitted). 

“A finding of fact is clearly erroneous if it is without factual support in the record

or if the appellate court, after reviewing all the evidence, is left with a definite

and firm conviction that a mistake has been made.” Tosco Corp. v. Koch Indus.,

Inc., 216 F.3d 886, 892 (10th Cir. 2000) (internal quotation marks omitted). 

Furthermore, notwithstanding Booker’s invalidation of the mandatory nature of

the sentencing guidelines, see 125 S.Ct. at 745, “district courts must still consult

the Guidelines and take them into account when sentencing. Thus, appellate

review continues to encompass review of the district court's interpretation and

application of the Guidelines.” Doe, 398 F.3d at 1257 n.5 (internal quotation

marks and citation omitted) (reviewing a pre-Booker sentence). See also United

States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005) (accord).

Clark’s challenge to the district court’s dangerous weapon enhancement

under USSG §2D1.1(b)(1) (providing for an increase of two offense levels if a
2

 The district court declined to consider her challenge to the determination

of relevant conduct quantity on the grounds it was untimely. See FED. R. CRIM. P.

32(f)(1) and (i)(3)(A). However, the court indicated that even if the objection had

been timely it would have overruled it. As it does not affect the outcome of our

review, we consider the challenge on its merits.

- 8 -

dangerous weapon was possessed in connection with the offense) is based on an

alleged weakness in temporal and spatial proximity between her possession of the

.22 caliber pistol seized from her purse on October 4, 2001, and relevant drug

trafficking conduct. Her challenge to the court’s calculation of a base offense

level of 28, see USSG §2D1.1(c)(6) (providing for a base offense level of 28

when the offense involves at least 20 grams but less than 35 grams of cocaine

base), depends on a related weakness in the temporal and spatial proximity

requirements for a determination of relevant conduct.2 In neither instance,

however, is the temporal and spatial evidence such that the district court’s

findings amount to clear error. I would affirm Clark’s sentence on this basis and

for the persuasive reasons given by the district court. 

B. Booker Error

Assuming Clark’s waiver of appellate rights is unenforceable, there is no

constitutional Booker error, only non-constitutional Booker error, and it fails the

plain error test. 

(1) Constitutional Booker Error
- 9 -

To resolve the question of the presence or absence of constitutional Booker

error, we need look no further than the language of Booker and the facts to which

Clark admitted in entering her plea of guilty. On December 9, 2003, Clark plead

guilty to possession with intent to distribute five grams or more of cocaine base

(crack cocaine) in violation of 21 U.S.C. § 841(a)(1). The base offense level for

this offense is 26. USSG §2D1.1(c)(7). Clark’s criminal history category, to

which she does not object, is V. This combination results in a guideline

sentencing range of 110-137 months imprisonment. USSG Ch.5, Pt.A (sentencing

table). She was sentenced to 120 months imprisonment.

Booker provides that “[a]ny fact (other than a prior conviction) which is

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

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

or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756 (emphasis

added). The maximum sentence authorized by the facts to which Clark admitted

in entering her plea of guilty is 137 months imprisonment. Her sentence, at 120

months imprisonment, does not exceed the maximum authorized sentence. For

this reason alone, there is no constitutional Booker error, plain or otherwise. See

United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir. 2005) (“Booker made

clear that it is the actual sentence, not the sentencing range, that must not be
- 10 -

increased based upon judge-found facts in order to violate the Sixth

Amendment[.]”).

I am unable to find any language in Booker to justify the majority’s

decision to include a three-level adjustment for acceptance of responsibility in

Clark’s non-enhanced sentence (a phrase not found in Booker). Booker forbids

only a sentence that exceeds the maximum authorized by facts either admitted by

the defendant or established by a jury verdict. Inasmuch as Clark entered a plea

of guilty, the only conceivable basis for including the adjustment for acceptance

of responsibility in the maximum authorized sentence is that the facts necessary to

support the adjustment were admitted by Clark in connection with her plea or at a

later time—and this is decidedly not so. 

An admission is a statement offered against a party. See Weeks v. Indep.

Sch. Dist. I-89, 230 F.3d 1201, 1209 (10th Cir. 2000); FED. R. EVID. 801(d)(2). 

In a criminal proceeding, an admission operates against a defendant’s penal

interest. See MCCORMICK ON EVIDENCE, § 254 (5th ed. 1999). By comparison,

facts necessary to support an adjustment for acceptance of responsibility are of

quite the opposite character. Whether introduced by the defendant or the

government, such facts operate in favor of a defendant’s penal interest. 

Therefore, such facts are not admissions at all and do not enter into the calculus

of the maximum authorized sentence or, to use the majority’s phraseology, the
- 11 -

non-enhanced sentence. As a result, the majority’s observation that an adjustment

for acceptance of responsibility is mandatory under the guidelines once the facts

to support it are established, while true, is immaterial to an inquiry as to the

presence or absence of constitutional Booker error. 

The majority’s new rule—that the maximum authorized or non-enhanced

sentence includes an uncontested downward adjustment for acceptance of

responsibility—does not derive from Booker. As the opinion quietly admits, it

rests on equitable considerations. In common parlance, fairness, like beauty, may

be a matter of perspective. But for our purposes, and regardless of perception, a

result cannot be fair unless the method of reaching it is legally ordained.

(2) Non-constitutional Booker error

To be sure, there is non-constitutional Booker error in Clark’s sentencing. 

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en

banc) (non-constitutional Booker error occurs where sentence is under mandatory

guidelines even though based on facts admitted by defendant or proven to jury

beyond a reasonable doubt). Clark did not object. We thus review for plain error. 

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights[.]” Id. at 732 (internal quotation marks omitted). “[A] court

may exercise its discretion to notice a [plain] error only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 736. See
- 12 -

also FED. R. CRIM. P. 52(b) (appellate court enjoys discretion to notice plain

error). The first two prongs of the plain error test are satisfied. See GonzalezHuerta, 403 F.3d at 732. We may avoid discussion of whether the third prong is

satisfied and resolve this appeal on the basis of the fourth prong. See id. at 736

(permitting resolution of plain error claim on third or fourth prong). 

“[W]e will not notice a non-constitutional [Booker] error, such as the one in

the case before us, unless it is both particularly egregious and our failure to notice

the error would result in a miscarriage of justice.” Id. (internal quotation marks

omitted). This standard is demanding, and the defendant bears the burden of

meeting it. Id. at 737. Several of the factors we consider are: 

a showing that the district court would likely impose a significantly

lighter sentence on remand, a substantial lack of evidence to support

the sentence the Guidelines required the district court to impose,

and/or a showing that objective consideration of the 18 U.S.C. §

3553(a) factors warrants a departure from the sentence suggested by

the Guidelines. 

United States v. Thomas, - - F.3d - -, No. 04-8066, 2005 WL 1395114 at *11

(10th Cir. June 14, 2005).

In considering the foregoing factors, it is useful to weigh the district

court’s comments at sentencing:

In determining the sentence to be imposed the Court has taken into

consideration the offense, your personal history and characteristics

and your specific involvement in this offense. After considering

those matters, the Court has decided to sentence the defendant to 120

months custody. . . . This sentence represents the low end of the
- 13 -

guideline range which the Court believes will meet the objectives of

punishment.

(R. Vol. 2 at 10-11.)

First, contrary to what the majority opinion asserts, neither these comments

nor the balance of the record show the district court would likely impose a

significantly lighter sentence under an advisory guideline regime The mere fact

Clark received a sentence at the bottom of the applicable guideline range does

not, on its own, tend to this conclusion. It is true the court recommended Clark

be transferred to the Fort Worth Medical Center. However, this evidences only

that the court recognized Clark had a drug problem and needed medical treatment. 

It does not demonstrate the court would have sentenced differently had it not

believed it was bound by the guidelines. Second, there is ample evidence to

support the sentence the guidelines required the district court to impose. Third,

nothing in the record, after an objective consideration of the factors stated in 18
3 Factors to be considered in imposing sentence. The

court shall impose a sentence sufficient, but not greater

than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall

consider –

(1) the nature and circumstances of the offense and

the history and characteristics of the defendant;

(2) the need for the sentence imposed –

(A) to reflect the seriousness of the offense, to

promote respect for the law, and to provide

just punishment for the offense;

(B) to afford adequate deterrence to criminal

conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational

or vocational training, medical care, or other

correctional treatment in the most effective

manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for –

(A) the applicable category of offense committed by

the applicable category of defendant as set forth in

the guidelines . . . .

 (5) any pertinent policy statement –

- 14 -

U.S.C. § 3553(a),3
(A) issued by the Sentencing Commission . . . .

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been

found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the

offense.

18 U.S.C. § 3553(a).

- 15 -

warrants a departure from the sentence indicated by the guidelines.

Clark has not demonstrated the presumed error in her sentence is

particularly egregious and failure to notice it would constitute a miscarriage of

justice. Therefore, Clark’s sentence does not seriously affect the fairness,

integrity, or public reputation of judicial proceedings. Since Clark fails to satisfy

the fourth-prong of the plain error test, there is no plain error. 

I would affirm Clark’s sentence.