* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 posse ssion 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 duri ng 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 G uidelines unconstitutional to defeat a recommended upward departure for obstructi on 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. H owe 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 a lso contends the court committed constitutional error in enhancing his sen tence 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 n or 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 OfficerAdam Szerszen arrested Robert Lee Howe for possession of drug paraphernali a. 313 F. Supp. 2d at 1181. After the arrest, Officer Szerszen found vials of awhite substance in a pat-down search which, upon advising Mr. Howe of his rights, Mr. Howe acknowledged was “crank,” or methamphetamine. In the ensuing se arch of the vehicle, substantial quantities of the same white substance, drug paraphernalia, a handgun, several firearms, and a locked silver briefcase wer e discovered. Id. at 1182. Ignoring Mr. Howe’s refusal to reveal the combinati on to the lock on the briefcase and request to speak to a lawyer, OfficerSzerszen then pried open the briefcase and found several large packages of metha mphetamine. Id. at 1183. Later, Officer Szerszen submitted an inventory repo rt 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 r endered the search unreasonable, and, specifically, on the ground thatthe search of the locked briefcase was unreasonable. Methodically and compr ehensively, the district court addressed each of the government’s justifications f or establishing the reasonableness of the search both of the vehicle an d 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 dis covered.” 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 offera fully effective equivalent, an exact incantation of the Miranda warnings is notrequired), and found Officer Szerszen’s advisement was in the present tense, dir ected 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 futu re.” 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, acce pt the district court’s findings of fact unless clearly erroneous, and review de nov o 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 the re 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 obta in a warrant. Under that proposition, he contends Officer Szerszan could hav e obtained a telephonic warrant under Utah Code Ann. § 77-23-204. However, despite the district court’s factual finding the inventory search did no t follow Roy City Police Department policies and was, therefore, unreasonabl e, it still concluded the doctrine of inevitable discovery overrode that conc lusion. Nothing Mr. Howe argues here alters that analysis. -5- Notwithstanding Mr. Howe’s efforts to refine each o f the contentions previously presented, 1 we conclude the district court correctly refused t o 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 we re not mandatory it would impose an alternate sentence. T hus, 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 sent ence based on facts presented at the sentencing hearing and proved by apreponderance of the evidence constitutes non-harmless Bookererror. United States v. Gonzalez-2 The court also recognized Mr. Howe faced another pr osecution for escape. -6- Huerta , 403 F.3d 727, 731 (10th Cir. 2005). Consequently , the sentence reflects a mandatory application of the Guidelines and is erro neous. Nonetheless, at sentencing, the court expressed its concerns with the harshness of the mandatory 270-month sentence, 210-months on Count 1 and 60-mo nths consecutive on Count II, and imposed an alternate sentence: I find Mr. Howe to be a sympathetic person . . . su ffering from depression and I think he’s suffering a lot. I thi nk he has a serious drug addiction and I haven’t seen any indication fr om his criminal history a person who has been involved in serious v iolent felonies of any kind or serious drug trafficking felonies. . .

. So in the event Blakely strikes it all down or some thing like Blakely [sic] 16 years is the alternative sentence and I th ink that even that is on the high side for a, I think unfortunately a per son who, who’s upbringing appears to be difficult, alcoholic paren ts, 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 seri ous addiction he claims until he hit meth. 2 On this basis the court imposed the alternative sen tence of 192 months. However, unlike United States v. LaBastida-Segura , 396 F.3d 1140 (10th Cir. 2005) (despite Bookerobjection, even sentence at the bottom of the guid eline range does not fully explain sentencing court’s dec ision), 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 exerc ise its discretion in selecting an alternate sentence.3 Because this amendment of the J & C is a ministeria l task designed to give

clear guidance to the Bureau of Prisons, the Distri ct 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 guide lines 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) (app roving the use of alternate sentence and affirming alternate sentence without r emanding case). -7- Mr. Howe pled guilty to all of the facts of both co unts of the indictment. Under the first count, Mr. Howe acknowledged he pos sessed 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 ormore than life. . . .” Under 18 U.S.C. § 924(c)(1), Mr. Howe’s plea incorporatedthe 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