* This case is unanimously ordered submitted withoutoral 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 o f Kansas and James A. Brown, Assistant United States Attorney, Topeka, Kansas fo r Plaintiff-Appellee. David J. Phillips, Federal Public Defender, Distric t of Kansas and Ronald E. Wurtz, Assistant Federal Public Defender, Topeka, K ansas 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 Uni ted States v. Booker , 125 S.Ct. 738 (2005). Because the court below increased Clark’s term of i mprisonment based on facts that it found by a preponderance of the evidence, constitutional error plagues Clark’s sentence. Applying plain err or review, we conclude that the sentence imposed affects Clark’s substantial rights and seriously affects the fairness, integrity, and public reputation of judic ial proceedings. We therefore
REMAND for resentencing.
I Clark pled guilty to knowingly and intentionally di stributing more than five grams of a mixture containing cocaine base, in viol ation of 21 U.S.C. § 841(a)(1). At the change of plea hearing, she admitted to sell ing 5.48 grams of crack cocaine on June 28, 2000. Based solely on the facts to whi ch she pled, Clark faced an offense level of 26 and a Guideline range of 110-13 7 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 officia ls discovered Clark either distributing or possessing crack cocaine on six sep arate occasions in 2003. The U.S. Probation Office recommended that the districtcourt 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 s he either possessed or distributed in 2003. Additionally, the PSR reporte d that on October 4, 2001, officers discovered a pistol and ammunition for var ious 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 o fficers 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 incid ents to calculate her base offense level, arguing that the span of time b etween the offense of conviction and the 2003 events precluded considerin g the latter as relevant conduct for the former. Similarly, she argued thatinsufficient evidence linked the offense of conviction to her possession of a firear m fifteen months later, and therefore objected to an enhancement of her offense level for firearm possession. Overruling Clark’s objections, the district court a dopted the PSR’s findings.1 The dissent asserts that Clark is barred from rais ing this argument because

she waived her right to raise a Bookerargument on appeal in her plea agreement. However, the government neither filed a motion to e nforce 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 g rams of cocaine base, the district court used a base offense level of 28. Th e court then enhanced the offense level to 30 because Clark possessed a firea rm, and ultimately settled on an offense level of 27 after including an adjustmen t for acceptance of responsibility. At offense level 27, and with a cr iminal 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 S ixth 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 decis ion 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 he r sentence underaddress the issue, as it is not jurisdictional in n ature. 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 Bookerto all cases in which a defendant properly raised an issue under either cas e.”). Clark did not raise a Bookerchallenge below. Consequently, we review the dist rict court’s sentencing decision for plain error under the four-part test a rticulated in United States v. Olano , 507 U.S. 725 (1993), which asks (1) is there erro r; (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 proceed ings. United States v. GonzalezHuerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc). A district court commits constitutional Bookererror when it “applies the Guidelines in a mandatory fashion, makes factual fi ndings (other than the fact of prior convictions), and imposes a sentence above th e 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 guil ty pursuant to a plea agreement to possession with intent to distribute m ore than 5 grams of cocaine base. In exchange for her plea, the government agr eed to recommend a three-level downward adjustment for acceptance of r esponsibility under U.S.S.G. § 3E1.1. At her plea hearing, Clark admitted to po ssessing 5.48 grams of cocaine- 6 -

base, a drug quantity which corresponds to a base o ffense 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 re sponsibility, however, Clark’s maximum sentencing range based solely on facts to w hich she pled was 84-105 months. Clark’s acceptance of responsibility adjustment mus t be included in our calculation of her sentencing range to comport with the Sixth Amendment. This is so because under the pre-Bookermandatory 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 contextof 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 subs ection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the governm ent stating that the defendant has assisted authorities in the inves tigation or prosecution of his own misconduct by timely notifyi ng authorities of his intention to enter a plea of guilty, thereby pe rmitting the government to avoid preparing for trial and permitt ing the- 7 -

government and the court to allocate their resource s 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 e ntitled. 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 red uction under § 3E1.1(b) and stating that “a defendant who ‘clearly demonstrates acceptance of responsibility for his offense’ is entitled to a . . . reduction i n his offense level.”). As the Fifth Circuit has unequivocally asserted, once an affirmative determination of acceptance of responsibility has been made, “no sen tencing 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 sent encing court finds that the defendant accepted responsibility for his or he r offense and entered a timely guilty plea, then the defendant is automatically en titled 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 ma ndatory, 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 de ny 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 supporte d by the facts the defendant admitted reduced by his or her acceptance of responsibility. This makes sense because for purposes of judicial a nd prosecutorial efficiency, the Sentencing Commission made the mann er of conviction a factor in determining punishment by offering a defendant who pleads guilty a sentencing “discount.” As the court recognized in United Stat es 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 t he time, expense and effort of trial – or who take some other equivalently concret e act, such as pretrial payment of full restitution.” (quotations omitted). It goe s without saying that one of the primary reasons a defendant pleads guilty is to obt ain the acceptance of responsibility reduction. Where the court finds a defendant has clearly accepted responsibility in a timely fashion, therefore, the maximum guidelines sentence2 Keeping the acceptance of responsibility reduction constant, it is clear

that the two enhancements challenged in this case i ncreased 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 necessari ly 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 responsibil ity. 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 commenceme nt of trial combined with truthfully admitting the conduct comprising the off ense of conviction . . . will constitute significant evidence of acceptance of re sponsibility”). The PSR mirrored the government’s recommendation and, in fa shioning a sentence, the district court accepted these recommendations. With out the sentencing enhancements based on judge-found facts, but with t he acceptance of responsibility adjustment, Ms. Clark faced an offen se level of 23 with a mandatory guidelines range of 84-105 months. We th erefore conclude that Clark received a sentence exceeding the maximum that woul d have applied had the district court not made findings with respect to th e quantity of drugs or possession of a firearm. 2enhancements (level 27). Without the reduction, sh e 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 Guide lines 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 t he one issued in this case. Thus, in Yazzie , the PSR-recommended range constituted the enhance d 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 Govern ment and the PSR both recommended, and the district court accepted, a thr ee-level acceptance of responsibility reduction. This reduced sentencing range constitutes the non-enhanced range in this case. Because it is cle ar 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-enh anced sentence. Moreover, excluding the recommended reduction from the non-en hanced sentence, in light of the district court’s determination to apply the red uction 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 Bookererror plagues Clark’s sentence, and all constituti onal Bookererrors satisfy the first two prongs of plain errorreview. To meet her burden on the third prong, Clark must show “a reaso nable probability that, but for the error claimed, the result of the proceeding wou ld have been different.” United States v. Dazey , 403 F.3d 1147 (10th Cir. 2005). Our recent juris prudence provides at least two ways that a defendant may dem onstrate such a reasonable probability. First, a defendant may show that, whe n viewing the facts of her case in light of 18 U.S.C. § 3553(a)’s sentencing factor s, the district court “would reasonably impose a sentence outside the Guidelines range.” Dazey , 403 F.3d at 1175. Second, a defendant aggrieved by constitutio nal Bookererror may show that her substantial rights were affected if she es tablishes a “reasonable probability that a jury applying a reasonable doubtstandard would not have found the same material facts that a judge found by a pre ponderance 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 qu antities stemming from a3 Additionally, an offense may be relevant conduct t o 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 fin ding that any of the 2003 drug offenses or the conduct surrounding f irearm possession in 2001 were part of a “common scheme or plan” with respectto the offense of conviction. We consider at length whether the vari ous 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 pa rt 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 c onviction 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 s imilarity of the offenses, the regularity (repetitions) of the offenses, and the t ime 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 conclusio n that the offenses were not part of the same course of conduct. She also argue s that her alleged offenses did not become “regular” until the spring of 2003. Cla rk’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 fin d 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 t he 2003 events all involved sales of small user amounts of crack cocaine, and t herefore are quite similar, there is a reasonable probability that a jury would not f ind the showing of similarity sufficiently strong to compensate for the absence o f temporal proximity or regularity. See § 1B1.3, cmt. 9(B). (“When one of the above factor s is absent, a stronger presence of at least one of the other fact ors 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 o f crack cocaine, leading us to conclude that the district court’s drug quantity fi nding 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 u nder U.S.S.G. § 2D1.1(b)(1). When seeking an enhancement under that Guideline pr ovision, the government bears the burden of proving “that a temporal and sp atial 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 glan ce, it may appear that the government must show proximity between possessi on of a firearm and the offense of conviction to support a § 2D1.1(b)(1) en hancement. 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 c ount of possession, the court must nevertheless look to the entire relevant conduct in determining the sentence. That conduct . . . inclu des 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 cas e are whether Clark’s possession of a weapon and ammunition on October 4, 2001 was c losely 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 w eapon in relation to a drug offense, the government points to Clark’s admi ssions to the investigating officers that she was holding the gun until its own er returned from purchasing crack cocaine and that Clark herself had sold cocai ne two days earlier. Clark counters that even if she possessed a gun in relati on to a drug offense, that offense is dissimilar from the offense of convictio n, the two offenses are insufficiently regular, and they occurred over a ye ar apart from each other; therefore, she argues, they do not constitute the s ame course of conduct. As to similarity, she states that the offense of convicti on involved the sale of cocaine whereas officers did not discover any cocaine in he r residence when they- 15 -

discovered the firearm. Furthermore, two isolated events fifteen months apart, she argues, are not sufficiently regular or tempora lly proximate to justify the enhancement. We conclude that there exists a reasonable probabil ity that a jury would find that the fifteen month interval between the of fenses renders them temporally distant, and that under the facts of this case Clar k’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 f irearm in relation to drug trafficking were part of the same course of conductwould require a strong showing of similarity between the two offenses. Cl ark’s admission to selling cocaine two days before officers found her in posse ssion of the firearm, and the fact that the weapon belonged to a man who was in t he course of purchasing cocaine, would not have persuaded a jury that the t wo 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 pa rt 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 potenti al 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 offens e in question involved conduct described in §§ 1B1.3(a)(1)(A) and (B); (2) the off ense 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 sch eme 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 qu alify as relevant conduct. Because we conclude that neither the alleged 2003 d rug 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 add ress the first two prerequisites. - 16 - the district court’s decision to adjust Clark’s sen tence pursuant to § 2D1.1(b)(1) affected her substantial rights. 4 Having concluded that Clark has met her burden unde r the third factor of the plain error test, we now determine whether, und er the fourth factor, the error seriously affected the fairness, integrity, or publ ic reputation of judicial proceedings. Gonzalez-Huerta , 403 F.3d at 736. Because this case involves constitutional Bookererror, we apply the fourth prong standard less rig idly. Clifton , 406 F.3d at 1182. To determine whether to exerci se our discretion and notice the error, we consider “the strength or lackof evidence supporting the defendant’s sentence under the Guidelines.” Id. We also consider whether “evidence in the record demonstrates that the distr ict court would impose the same sentence even under an advisory Guidelines sys tem.” United States v.
Lawrence , 405 F.3d 888, 908 (10th Cir. 2005).- 17 -

In the sentencing proceedings below, Clark forceful ly disputed the court’s findings with respect to the amount of drugs and po ssession 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 fac ts that enhanced his sentence.”). Moreover, the evidence in the record by no means leads ineluctably to the conclusion that either the drug sales in 200 3 or the drug activity associated with possession of a weapon in October 2001 constit ute relevant conduct with respect to the offense of conviction; rather, the e vidence is easily susceptible to differing interpretations by a fact finder. Furthe rmore, we conclude that there is a reasonable likelihood that the court would impose alower sentence on remand. The court imposed sentence at the very bottom of th e Guidelines range, suggesting that if initially afforded discretion, t he court may have imposed a lower sentence. Additionally, counsel argued at th e sentencing hearing that Clark “was involved in these incidents because of her add iction. She doesn’t move drugs. . . . She owns up to what she does better t han 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 Ce nter, and the district court made that recommendation. Such arguments would be relevant to the district court’s exercise of discretion when imposing senten ce in light of the § 3553(a) factors.- 18 -

Our final inquiry under the fourth prong is “whethe r the Bookererror substantially increased the defendant’s sentence.” Clifton , 406 F.3d at 1182. Had the district court not increased Clark’s sentence b ased on its unconstitutional findings, Clark likely would have received a senten ce of 84 months. This 84- month sentence is based on the facts to which Clarkpled, and accounts for the government’s recommendations of an acceptance of re sponsibility reduction and a sentence at the bottom of the applicable range, whi ch 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 comm itted Bookererror. The fourth prong of Olano speaks in the disjunctive: Our inquiry is (1) does the gulf between the constitutional sentence a nd 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 serio usly affect[s] the fairness, integrity orpublic reputation of judicial proceedings.”) (emph asis added); Gonzalez-Huerta , 403 F.3d at 736. We are not prepared to say that an unconstitutionally imposed sentence leading to thre e years’ additional incarceration is fair; nor are we prepared to say t hat consigning someone to three years in prison on an unlawful basis does not impac t the integrity of the process;5 Clark also argues that insufficient evidence suppo rted 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 Bookergrounds, we need not address the sufficiency of the evidence argument. - 19 - finally, we doubt that the public would retain conf idence in a system that would countenance such an unconstitutional sentence – thu s the public reputation of judicial proceedings is implicated. Defendants are not required to prove all three elem ents 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 resen tence 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 woul d 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 app ellate rights in a plea agreement files a notice of appeal and the g overnment wishes to enforce this waiver, the government will file a “Motion for Enforcement of the Plea Agreement.” This motion wi ll address the three-prong enforcement analysis provided above, bu t 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 enforceab le, 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 Bookererror 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 statedunderlying merits of the defendant's appeal. The d efendant 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 under lying merits of the defendant's appeal. If the panel finds that the plea agreement is enfor ceable, it will summarily dismiss the appeal. If the panel finds t he plea agreement unenforceable, it will issue a ruling consistent wi th this finding. Hahn, 359 F.3d at 1328. In this case, I would excuse the Government from complying with this procedure because of unique cir cumstances. Clark filed her opening brief on July 16, 2004. The Government fil ed its answer brief on September 16, 2004. Clark filed her reply brief on October 4, 2004. Bookerwas not decided until January 12, 2005. Supplemental b riefing was neither requested nor ordered. Under these circumstances, where the Government had no reason to suppose, during briefing of the merits of the appea l, that Bookerwould be decided as it was (applying Blakelyto invalidate the federal sentencing guidelines in sofar as they were mandatory) and that it would provide t he 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 Blakelyand Bookerto all cases in which a defendant properly raised an issue under either cas e.”), we should rule on the enforceability of the waiver as to the Bookerissues even without a Government motion. - 2 - she “knowingly and voluntarily waives anyright to anyappeal . . . on anymatter in connection with [her] prosecution and sentence, except the defendant reserves the right to appeal the district court’s findings r elating 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 preserve d her right to appeal specific findings the district court made in applying the gu idelines, she did not preserve her right to challenge the propriety of the distric t 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 r ight to appeal, we first determine if the appeal falls within the scope of t he appellate waiver. Hahn, 359 F.3d at 1325. Second, we ascertain whether the def endant’s waiver of appellate rights was knowing and voluntary. Id. Third, we evaluate whether enforcement of the appellate waiver would result in a miscarria ge of justice because (1) the district court relied on an impermissible factor su ch as race, (2) ineffective assistance of counsel in negotiating the waiver ren ders 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 th e 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 he r right to appeal based

on Bookerthru a plea agreement with broad language. United States v. Green , 405 F.3d 1180, 1189 (10th Cir. 2005). Clark’s waiv er 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 th e Defendant and denied by the- 4 -

District Court regarding the application of the Sen tencing Guidelines.’”). As we said in Green : Whether Defendant's sentence violated Bookerdoes 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 Guideline s” in the plea agreement, does not refer to the arguments that (1) it was constitutionally impermissible for the district cou rt to engage in factfinding by a preponderance of the evidence to e nhance Defendant's sentence beyond the Guidelines range th at would otherwise apply based on the facts that Defendant a dmitted during the plea hearing; or (2) the district court's appli cation of the Sentencing Guidelines in a mandatory fashion was er ror. 405 F.3d at 1189. See also United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (“Supreme Court precedent is quite expli cit that as part of a plea agreement, criminal defendants may waive both right s in existence and those that result from unanticipated later judicial determinat ions.”). Thus, Clark’s waiver included Bookerissues within its scope. As to whether Clark’s waiver was knowing and volunt ary, “[w]hen determining whether a waiver of appellate rights is knowing and voluntary, we especially look . . . to whether the language of th e plea agreement states that the defendant entered the agreement knowingly and volun tarily . . . [and] for an adequate [Rule] 11 colloquy.” Hahn , 395 F.3d at 1325. In her plea agreement, Clark specifically stated she “knowingly and volunt arily” waived her right to an appeal. (R. Vol. I, Doc. 39 at 5.) In her Petitio n to Enter Plea of Guilty, which- 5 -

incorporated her plea agreement by reference, Clarkreiterated she offered her plea of guilty “freely and voluntarily . . . with f ull 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 o f guilty was entered “freely, voluntarily . . . and with full understanding of it s consequences.” (Id. at 8.) The record thus demonstrates Clark’s waiver of her righ t to appeal was both voluntary and intelligent, and it is not stripped of this cha racter 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 kn owing despite subsequent developments in the law.”). As to whether enforcement of Clark’s appellate waiv er 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 rai se an ineffective assistance of counsel claim. This limits our Hahn “miscarriage of justice” analysis to whether the sentence exceeds the statutory maximum or wheth er the waiver is otherwise unlawful. Inasmuch as the phrase “‘statutory maxim um’ 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 ca nnot overturn her appellate waiver on this basis. For a waiver to be “otherwise unlawful” according t o 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 s tatutory maximum, informed the defendant that he was giving up multiple constitutional and appellate rights in exchange forconcessions from the government, and implied that the sentence would be imposed in accordance with the guidelines then in effect. We a lso 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 a bridgement of this standard. Furthermore, as we discuss below, Clark makes no sh owing the court would have sentenced her differently under a post- Bookeradvisory scheme. Consequently, the fairness, integrity or public reputation of jud icial proceedings is not implicated by enforcement of her waiver of her righ t to appeal. See id. at *3-*4. Based on the foregoing, Clark’s waiver of her rightto appeal on the basis of Bookermust be enforced.- 7 - (2) Guidelines challenges fail clear error test Inasmuch as Clark’s waiver of her right to appeal o n the basis of Bookeris 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 quot ation marks omitted). “A finding of fact is clearly erroneous if it is wi thout 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 quot ation 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 consu lt the Guidelines and take them into account when sent encing. Thus, appellate review continues to encompass review of the distric t 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- Bookersentence). 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 a2 The district court declined to consider her challe nge to the determination

of relevant conduct quantity on the grounds it was untimely. See F ED
. R. C RIM
. P. 32(f)(1) and (i)(3)(A). However, the court indicat ed 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 t he 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 October4, 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 lev el of 28 when the offense involves at least 20 grams but les s than 35 grams of cocaine base), depends on a related weakness in the tempora l and spatial proximity requirements for a determination of relevant conduc t. 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 Cla rk’s sentence on this basis and for the persuasive reasons given by the district co urt. B. BookerError Assuming Clark’s waiver of appellate rights is unen forceable, there is no constitutional Bookererror, only non-constitutional Bookererror, and it fails the plain error test.

(1) Constitutional BookerError- 9 -

To resolve the question of the presence or absence of constitutional Booker error, we need look no further than the language of Bookerand 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 cr iminal history category, to which she does not object, is V. This combination results in a guideline sentencing range of 110-137 months imprisonment. U SSG Ch.5, Pt.A (sentencing table). She was sentenced to 120 months imprisonme nt. Bookerprovides that “[a]ny fact (other than a prior conv iction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict m ust be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 12 5 S.Ct. at 756 (emphasis added). The maximum sentence authorized by the fac ts to which Clark admitted in entering her plea of guilty is 137 months impris onment. Her sentence, at 120 months imprisonment, does not exceed the maximum au thorized sentence. For this reason alone, there is no constitutional Bookererror, plain or otherwise. See United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir. 2005) (“ Bookermade clear that it is the actual sentence, not the sente ncing 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 ac ceptance of responsibility in Clark’s non-enhanced sentence (a phrase not found in Booker ). Bookerforbids only a sentence that exceeds the maximum authorized by facts either admitted by the defendant or established by a jury verdict. In asmuch 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 co nnection 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); F ED
. R. E VID . 801(d)(2). In a criminal proceeding, an admission operates aga inst a defendant’s penal interest. See M C C ORMICK ON E VIDENCE , § 254 (5th ed. 1999). By comparison, facts necessary to support an adjustment for accept ance of responsibility are of quite the opposite character. Whether introduced b y the defendant or the government, such facts operate in favor of a defend ant’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, th e- 11 -

non-enhanced sentence . As a result, the majority’s observation that an adjustment for acceptance of responsibility is mandatory underthe guidelines once the facts to support it are established, while true, is immat erial to an inquiry as to the presence or absence of constitutional Bookererror. The majority’s new rule—that the maximum authorized or non-enhanced sentence includes an uncontested downward adjustmen t for acceptance of responsibility—does not derive from Booker . As the opinion quietly admits, it rests on equitable considerations. In common parlan ce, 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 Bookererror To be sure, there is non-constitutional Bookererror in Clark’s sentencing. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc) (non-constitutional Bookererror occurs where sentence is under mandatory guidelines even though based on facts admitted by d efendant 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) th at is plain, which (3) affects substantial rights[.]” Id. at 732 (internal quotation marks omitted). “[A] c ourt may exercise its discretion to notice a [plain] err or only if it seriously affects the fairness, integrity, or public reputation of judici al proceedings.” Id. at 736. See- 12 -

also F ED
. R. C RIM
. P. 52(b) (appellate court enjoys discretion to noti ce plain error). The first two prongs of the plain error te st are satisfied. See GonzalezHuerta, 403 F.3d at 732. We may avoid discussion of whethe r the third prong is satisfied and resolve this appeal on the basis of t he fourth prong. See id. at 736 (permitting resolution of plain error claim on thir d 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 defe ndant bears the burden of meeting it. Id. at 737. Several of the factors we consider are: a showing that the district court would likely impo se a significantly lighter sentence on remand, a substantial lack of e vidence to support the sentence the Guidelines required the district c ourt to impose, and/or a showing that objective consideration of th e 18 U.S.C. § 3553(a) factors warrants a departure from the sente nce 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 Courthas taken into consideration the offense, your personal history an d characteristics and your specific involvement in this offense. Aft er considering those matters, the Court has decided to sentence th e 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 assert s, neither these comments nor the balance of the record show the district cou rt would likely impose a significantly lighter sentence under an advisory gu ideline regime The mere fact Clark received a sentence at the bottom of the appl icable guideline range does not, on its own, tend to this conclusion. It is tr ue the court recommended Clark be transferred to the Fort Worth Medical Center. H owever, this evidences only that the court recognized Clark had a drug problem and needed medical treatment. It does not demonstrate the court would have senten ced differently had it not believed it was bound by the guidelines. Second, t here is ample evidence to support the sentence the guidelines required the di strict court to impose. Third, nothing in the record, after an objective consideration of the factors stated in 183 Factors to be considered in imposing sentence . The court shall impose a sentence sufficient, but not g reater 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 th e defendant; and (D) to provide the defendant with needed educationa l 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 i n 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 disparit ies 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 he r sentence is particularly egregious and failure to notice it wou ld constitute a miscarriage of justice. Therefore, Clark’s sentence does not seri ously affect the fairness, integrity, or public reputation of judicial proceed ings. Since Clark fails to satisfy the fourth-prong of the plain error test, there is no plain error. I would affirm Clark’s sentence.