* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** The Honorable James O. Browning, United States District Judge for the

District of New Mexico, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

June 30, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT LEE HOWE, JR.,

Defendant - Appellant.

No. 04-4171

(D.C. No. 1:02-CR-64-DB)

(District of Utah)

ORDER AND JUDGMENT*

Before BRISCOE, PORFILIO, Circuit Judges, and BROWNING, District

Judge.**

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
-2-

After his motion to suppress was denied, United States v. Howe, 313 F.

Supp. 2d 1178 (D. Utah 2003), Robert Lee Howe, Jr. conditionally pled guilty to 

two counts of an indictment charging him with possession with intent to distribute

50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and

knowingly and intentionally carrying a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1). At sentencing, the court

rejected Mr. Howe’s motion to find the Sentencing Guidelines unconstitutional to

defeat a recommended upward departure for obstruction of justice. It then

imposed both a guideline sentence of 22.5 years and, in the wake of Blakely, an

alternative sentence of 16 years. On appeal, Mr. Howe contests the court’s denial

of his motion to suppress the contents of a locked briefcase police broke open and

his post-arrest statements. Adding another ripple “in the stream of Booker-related

cases,” United States v. Magallanez, F.3d , No. 04-8021, 2005 WL

1155913, at *1 (10th Cir. May 17, 2005), Mr. Howe also contends the court

committed constitutional error in enhancing his sentence based on judicially

found facts to which he did not plead. Concluding otherwise, we hold neither the

district court’s denial of the motion to suppress nor its prescient decision to

impose an alternative sentence was error and affirm the judgment. 

The district court having fully narrated the facts, we limn only their essence

here. Observing a figure holding a glass pipe and torch lighter and slouched over
-3-

the wheel of a parked car, Roy, Utah Police Officer Adam Szerszen arrested

Robert Lee Howe for possession of drug paraphernalia. 313 F. Supp. 2d at 1181. 

After the arrest, Officer Szerszen found vials of a white substance in a pat-down

search which, upon advising Mr. Howe of his rights, Mr. Howe acknowledged

was “crank,” or methamphetamine. In the ensuing search of the vehicle,

substantial quantities of the same white substance, drug paraphernalia, a handgun,

several firearms, and a locked silver briefcase were discovered. Id. at 1182. 

Ignoring Mr. Howe’s refusal to reveal the combination to the lock on the

briefcase and request to speak to a lawyer, Officer Szerszen then pried open the

briefcase and found several large packages of methamphetamine. Id. at 1183. 

Later, Officer Szerszen submitted an inventory report on Mr. Howe’s impounded

vehicle. 

In the district court, Mr. Howe targeted his motion to suppress, generally,

on the theory that the officers’ failure to follow internal Roy City Police

Department written policies on inventory searches rendered the search

unreasonable, and, specifically, on the ground that the search of the locked

briefcase was unreasonable. Methodically and comprehensively, the district court

addressed each of the government’s justifications for establishing the

reasonableness of the search both of the vehicle and the briefcase: (1) search

incident to arrest, (2) automobile search based on probable cause, (3) lawful
-4-

inventory search, and (4) inevitable discovery, and concluded, “the evidence

found in the vehicle would have inevitably been discovered.” Id. at 1187. 

Although the court employed these and other factors in denying Mr. Howe’s

motion to suppress, underlying that conclusion was the unrefuted presence of

probable cause. 

Further, the court rejected Mr. Howe’s effort to suppress his post-arrest

statement to Officer Szerszen who, he claimed, had failed to adequately convey

his Miranda rights. Miranda v. Arizona, 384 U.S. 436 (1966). Quoting Officer

Szerszen’s testimony, the court relied on California v. Prysock, 453 U.S. 355,

359-60 (1981) (per curiam) (provided officers offer a fully effective equivalent,

an exact incantation of the Miranda warnings is not required), and found Officer

Szerszen’s advisement was in the present tense, directed at the present moment,

“effectively communicat[ing] to Defendant that his right to appointed counsel

existed at that time, not at some point in the future.” 313 F. Supp. 2d at 1188. 

“When reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Williams, 403

F.3d 1188, 1193 (10th Cir. 2005) (quoting United States v. Katoa, 379 F.3d 1203,

1205 (10th Cir. 2004), cert. denied, U.S. , 125 S. Ct. 1390 (2005)). 
1 For example, although Mr. Howe does not contest there was probable cause

to search his vehicle, he contends Carroll v. United States, 267 U.S. 132 (1925),

does not absolutely obviate the requirement to obtain a warrant. Under that

proposition, he contends Officer Szerszan could have obtained a telephonic

warrant under Utah Code Ann. § 77-23-204. However, despite the district

court’s factual finding the inventory search did not follow Roy City Police

Department policies and was, therefore, unreasonable, it still concluded the

doctrine of inevitable discovery overrode that conclusion. Nothing Mr. Howe

argues here alters that analysis. 

-5-

Notwithstanding Mr. Howe’s efforts to refine each of the contentions previously

presented,1

 we conclude the district court correctly refused to suppress the

evidence and statements and adopt its reasoning and analysis. 

Next, Mr. Howe contends the court erred in finding the Sentencing

Guidelines constitutional and in adding a two-level enhancement for obstruction

of justice based on the government’s evidence of Mr. Howe’s attempted escape

from the Weber County Jail. Mr. Howe seeks remand for imposition of the

alternative sentence. The government concedes the sentence imposed constitutes

non-harmless Booker error because the court stated if the Guidelines were not

mandatory it would impose an alternate sentence. Thus, the government agrees

the Guideline sentence should be vacated under United States v. Booker, 

U.S. , 125 S. Ct. 738 (2005).

Undisputably, the court’s enhancing Mr. Howe’s sentence based on facts

presented at the sentencing hearing and proved by a preponderance of the

evidence constitutes non-harmless Booker error. United States v. Gonzalez-
2 The court also recognized Mr. Howe faced another prosecution for escape. 

-6-

Huerta, 403 F.3d 727, 731 (10th Cir. 2005). Consequently, the sentence reflects a

mandatory application of the Guidelines and is erroneous. Nonetheless, at

sentencing, the court expressed its concerns with the harshness of the mandatory

270-month sentence, 210-months on Count 1 and 60-months consecutive on Count

II, and imposed an alternate sentence:

I find Mr. Howe to be a sympathetic person . . . suffering from

depression and I think he’s suffering a lot. I think he has a serious

drug addiction and I haven’t seen any indication from his criminal

history a person who has been involved in serious violent felonies of

any kind or serious drug trafficking felonies. . . .

So in the event Blakely strikes it all down or something like Blakely

[sic] 16 years is the alternative sentence and I think that even that is

on the high side for a, I think unfortunately a person who, who’s

upbringing appears to be difficult, alcoholic parents, a stepfather who

apparently abused him, difficult upbringing, again drinking alcohol at

the age of 8, a lot of drug use and then not a serious addiction he

claims until he hit meth.2

On this basis the court imposed the alternative sentence of 192 months. 

However, unlike United States v. LaBastida-Segura, 396 F.3d 1140 (10th Cir.

2005) (despite Booker objection, even sentence at the bottom of the guideline

range does not fully explain sentencing court’s decision), we are not left “in the

zone of speculation and conjecture.” Id. at 1143. The district court explained

precisely and perspicaciously how it chose to exercise its discretion in selecting

an alternate sentence. 
3 Because this amendment of the J & C is a ministerial task designed to give

clear guidance to the Bureau of Prisons, the District Court need not hold another

sentencing hearing to accomplish this task. Cf. United States v. Garcia, 893 F.2d

250, 252 (10th Cir. 1989) (“[T]he alternative guidelines sentence is the sentence

that must be applied against defendant.”); United States v. Scott, No. 93-2176,

1994 WL 35027, at **2 (10th Cir. Feb. 7, 1994) (approving the use of alternate

sentence and affirming alternate sentence without remanding case).

-7-

Mr. Howe pled guilty to all of the facts of both counts of the indictment. 

Under the first count, Mr. Howe acknowledged he possessed 50 grams or more of

methamphetamine which subjected him to the mandatory minimum sentence of 21

U.S.C. § 841(b)(1)(A)(viii), “such person shall be sentenced to a term of

imprisonment which may not be less than 10 years or more than life. . . .” Under

18 U.S.C. § 924(c)(1), Mr. Howe’s plea incorporated the penalty of imprisonment

of “not less than 5 years.” Consequently, Mr. Howe’s alternative sentence of 192

months falls within the statutory sentence of both counts. We, therefore,

AFFIRM the judgment sentencing Mr. Howe to the alternate sentence of 192

months, but REMAND so that the District Court can amend the Judgment and

Committal to reflect the alternate sentence is the operative sentence.3

Entered for the Court

John C. Porfilio

Senior Circuit Judge