F I LED

United States Court of Appeals

Tenth Circuit

January 24, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON TODD DAVIS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL LAVONTE GAITHER, 

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONTE ORMOND WARD,

Defendant-Appellant.

No. 05-6312

(D.C. No. CR-01-181-02-M)

(W.D. Okla.)

No. 05-6363

(D.C. No. CR-01-181-01-M)

(W.D. Okla.)

No. 06-6002

(D.C. No. CR-01-181-05-M)

(W.D. Okla.)
After examining the briefs and appellate record, this panel has determined *

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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ORDER AND JUDGMENT

*

Before TACHA, Chief Judge, KELLY, and O’BRIEN, Circuit Judges.

Defendants Jason Todd Davis, Michael Gaither, and Donte Ormond Ward

challenge the constitutionality of their sentences imposed on remand. In this

consolidated order and judgment, we take jurisdiction under 28 U.S.C. § 1291

and affirm.

I.

After a lengthy trial conducted in April and May 2002, a jury found

defendants guilty of numerous drug-related crimes in connection with a

conspiracy to distribute phencyclidine (PCP) in Oklahoma City. The district

court made factual findings related to defendants’ sentences under

a preponderance of the evidence standard, mandatorily applied the Sentencing

Guidelines, and sentenced defendants to multiple concurrent terms of life

imprisonment and lesser terms of imprisonment. 
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In their initial appeals, defendants challenged their convictions and

sentences. United States v. Ward, 96 F. App’x 615 (10th Cir. 2004). With regard

to sentencing, defendants asserted that the district court improperly calculated

drug quantities for relevant-conduct purposes; wrongly decided that they were

leaders or organizers of the drug conspiracy, resulting in a four-level

enhancement of their sentences under U.S.S.G. § 3B1.1(a); and incorrectly

determined that they willfully obstructed justice by threatening and intimidating

witnesses, resulting in a two-level enhancement under U.S.S.G. § 3C1.1(a). Id. at

623-26. Additionally, Davis and Gaither claimed insufficient evidence to support

a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of firearms

in connection with a drug-trafficking offense, and Gaither contended that he

should not have received a two-level enhancement for reckless endangerment

during flight from police under U.S.S.G. § 3C1.2. Id. at 627-28. After reviewing

the factual basis of the drug-quantity findings and enhancements for clear error,

and also considering the constitutionality of the sentencing process, this court

affirmed the judgments of the district court. Id. at 631.

Defendants filed petitions for writs of certiorari with the Supreme Court.

The Court subsequently decided United States v. Booker, 543 U.S. 220 (2005),

which held that the Sixth Amendment requires “[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
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be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 

Id. at 244. To rectify the constitutional infirmity presented by the mandatory

Guideline system, the Court fashioned a broad remedy, making the Guidelines

advisory rather than mandatory in all cases. Id. at 245. In the wake of its Booker

decision, the Supreme Court granted defendants’ petitions, vacated the judgments,

and remanded the cases to this court for further consideration. Gaither v. United

States, 543 U.S. 1102 (2005); Ward v. United States, 543 U.S. 1103 (2005); Davis

v. United States, 543 U.S. 1107 (2005). This court remanded the cases, directing

the district court to vacate the sentences and resentence defendants in accordance

with Booker. United States v. Ward, 143 F.App’x 88, 90 (10th Cir. 2005).

On remand, the district court denied defendants’ requests for de novo

sentencing hearings and declined to revisit its initial factual findings, which had

been reviewed and affirmed by this court. Using the same drug quantities and

applying the same enhancements that served as the basis of the reversed

sentences, the court again calculated defendants’ Guideline ranges under the

sentencing guidelines and reached the same guideline ranges–life sentences. 

The court recognized the advisory nature of the Guidelines following Booker. 

At defendants’ resentencing hearings, the district court specifically considered

the purposes of sentencing as expressed in the statutory sentencing factors. 

See 18 U.S.C. § 3553(a). Particularizing its discussion to each defendant, the

court looked to the defendant’s age and criminal history, the significant drug
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quantities attributable to the defendant, the firearms involved, and the role played

by the defendant. See id. §§ 3553(a)(1), (2)(A). And, for each defendant, the

district court determined that a sentence below the Guideline range of life was

“sufficient, but not greater than necessary,” to deter criminal conduct, “protect the

public from further crimes of the defendant,” and also “to provide the defendant

with educational or vocational training.” Id. § 3553(a)(2)(B), (C), (D). The court

sentenced Ward to a term of 460 months, to run concurrently with a lesser

sentence; Davis to a term of 480 months, to run concurrently with lesser

sentences; and Gaither to a term of 540 months, to run concurrently with lesser

sentences.

II.

Defendants now appeal the sentences imposed on remand. In reviewing

their sentences, “we first determine whether the court calculated the correct

Guidelines range; if so, we examine the sentence for reasonableness, using a

presumption of reasonableness for within-Guidelines sentences.” United States v.

Aguayo-Gonzalez, No. 05-2349, 2007 WL 10758, at *2 (10th Cir. Jan. 3, 2007).

Concerning the Guidelines calculation, defendant Gaither first argues that

he was entitled to a de novo determination on resentencing. There is no legal

authority for the proposition that a district court must “expand the scope of the

resentencing beyond the issue that resulted in the reversal and vacation of

sentence.” United States v. Moore, 83 F.3d 1231, 1235 (10th Cir. 1996). Rather,
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the case law instructs that the court has the “inherent discretion to determine the

appropriate scope of the resentencing proceedings.” Id. Moreover, the district

court’s exercise of its discretion to utilize the facts found in the initial sentencing

proceeding was particularly appropriate in this instance. Earlier, this court had

affirmed the calculation of the Guideline range, based on the district court’s

calculations of drug amounts and applications of the enhancements for leadership

roles, obstruction of justice, possession of firearms, and reckless endangerment. 

Next, all three defendants claim that the district court’s use of its earlier

calculations and imposition of enhancements violated their rights under the Sixth

Amendment and Due Process Clause. They assert that these types of factual

determinations must be found by a jury beyond a reasonable doubt. Under

Booker’s advisory regime, however, a district court may make Guideline

calculations using facts found by the judge. United States v. Magallanez,

408 F.3d 672, 684-85 (10th Cir.), cert. denied, 126 S. Ct. 468 (2005). “[S]uch

fact-finding is unconstitutional only when it operates to increase a defendant’s

sentence mandatorily.” United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir.

2005); see also Magallanez, 408 F.3d at 685 (“[W]hen a district court makes a

determination of sentencing facts by a preponderance test under the now-advisory

Guidelines, it is not bound by jury determinations reached through application of

the more onerous reasonable doubt standard.”). We discern no error in either the
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district court’s consideration of its own drug-quantity findings or its application

of the enhancements.

Additionally, Defendant Ward asserts that, under Crawford v. Washington,

541 U.S. 36 (2004), the use of hearsay evidence in connection with the

obstruction enhancement violated his Sixth Amendment right to confront

witnesses against him. We have previously rejected this argument. “[N]othing

in Crawford . . . requires us to depart from our precedent that constitutional

provisions regarding the Confrontation Clause are not required to be applied

during sentencing proceedings.” United States v. Bustamante, 454 F.3d 1200,

1202 (10th Cir. 2006) (quotation omitted). The court’s reliance on hearsay

statements in the sentencing process did not implicate Ward’s Confrontation

Clause rights.

Finally, with regard to the reasonableness of their sentences, all the

defendants argue that the district court erred by again applying the Guidelines in a

mandatory manner. A district court’s failure to consider the guidelines as

advisory in accordance with Booker presents what this court has termed a

non-constitutional error. United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32

(10th Cir.), cert. denied, 126 S. Ct. 495 (2005). The record on resentencing,

however, plainly refutes defendants’ contention. The district court clearly

complied with Booker by applying the Guidelines in an advisory fashion, as

Booker requires. Indeed, the district court exercised its afforded discretion to
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depart downward from the Guideline indication of life sentences to relatively

lesser sentences ranging from 460 to 540 months. 

III.

We conclude that defendants’ sentences are constitutional, procedurally

correct, and substantively reasonable. The judgments of the district court are

AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Chief Circuit Judge