1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-1078

___________

United States of America, *

*

Appellee, * Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Carla Marshall, *

* [UNPUBLISHED]

Appellant. *

*

___________

Submitted: March 4, 2005

Filed: June 2, 2005

___________

Before RILEY, SMITH, and BENTON, Circuit Judges.

___________

PER CURIAM.

Carla Maria Marshall appeals, arguing that the district court1

 violated United

States v. Booker, 125 S.Ct. 738 (2005), by enhancing her sentence based on facts not

proven beyond a reasonable doubt, and by treating the Sentencing Guidelines as

mandatory. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.
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By the plea agreement, Marshall pleaded guilty to distribution of cocaine, and

aiding and abetting the distribution of cocaine. 21 U.S.C. §§ 841(a)(1) and (b)(1)(C);

18 U.S.C. § 2. The Presentence Investigation Report prescribed offense level 26, and

criminal history category II – for a sentence range of 70 to 87 months. (The range

was calculated based on Marshall's stipulation of 5 to 20 grams of crack-cocaine.)

By the plea agreement, Marshall was eligible for a downward adjustment for

acceptance of responsibility, potentially resulting in offense level 23, category II –

for a sentence range of 51 to 63 months. 

Before sentencing, Marshall violated the terms of her release by failing urine

tests (testing positive for marijuana and cocaine), failing to appear for an additional

test, associating with known drug offenders, and refusing to self-surrender upon court

order. At sentencing, the district court denied an acceptance-of-responsibility

adjustment and added an enhancement for obstruction of justice. The result was

offense level 28, category II – for a sentence range of 87 to 108 months. The district

court sentenced Marshall to 87 months.

I.

Marshall argues that the district court violated her Sixth Amendment rights

because it enhanced her sentence for obstruction of justice, which was not proven

beyond a reasonable doubt. See Booker, 125 S.Ct. at 746-47 (citing Blakely v.

Washington, 542 U.S. ---, 124 S.Ct. 2531, 2537 (2004)). She complains that the

enhancement inflated the range from 70 to 87 months to 87 to 108 months. This court

reviews for clear error. United States v. Mathijssen, 2005 WL 1005003, at * 2 (8th

Cir. May 2, 2005).

The Sixth Amendment is violated if a judge imposes a sentence that is not

solely based on "facts reflected in the jury verdict or admitted by the defendant."

Blakely,124 S.Ct. at 2537. In Booker, the Supreme Court held: "Any fact (other than
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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." Booker,

125 S.Ct. 738 at 756. Accordingly, a sentence does not offend the Sixth Amendment

if the defendant admits the facts supporting the enhancement. United States v.

Yahnke, 395 F.3d 823, 825-26 (8th Cir. 2005). 

At sentencing, Marshall conceded she failed to appear for pre-trial services due

to fear and poor decision-making. She has never contended that an external source

prevented her from complying. The Guidelines advise that an enhancement is

appropriate where the defendant willfully fails to appear for judicial proceedings. See

U.S.S.G. § 3C1.1, cmt. n. 4(e). Because Marshall admitted the facts supporting

obstruction of justice, the sentence did not violate her Sixth Amendment rights.

II.

Marshall attacks the district court's denial of a downward adjustment for

acceptance of responsibility. She emphasizes that she admitted her guilt and assisted

the government in locating a co-defendant.

This court reviews a district court's determination of acceptance of

responsibility for clear error. United States v. Patten, 397 F.3d 1100, 1104 (8th Cir.

2005). A district court's denial of a reduction for acceptance of responsibility will not

be reversed unless the facts clearly establish that a defendant has accepted personal

responsibility. United States v. Card, 390 F.3d 592, 594 (8th Cir. 2004); see also

U.S.S.G. § 3E1.1. 

The district court denied the acceptance-of-responsibility adjustment because

Marshall (admittedly) continued to associate with known drug offenders, failed to

submit to an additional drug test, and refused to self-surrender in accordance with a
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court order. A court may deny acceptance of responsibility where the defendant fails

to surrender for judicial proceedings. See United States v. Shinder, 8 F.3d 633, 635

(8th Cir. 1993). Moreover, the court found that Marshall obstructed justice. The

Guidelines state that an enhancement for obstruction of justice generally indicates the

defendant has not accepted responsibility. U.S.S.G. § 3E1.1, n. 4; see also United

States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001).

Marshall argues that the obstruction-of-justice enhancement does not

necessarily preclude an acceptance-of-responsibility adjustment. See United States

v. Honken, 184 F.3d 961, 967-968 (8th Cir. 1999). True, in an "extraordinary case"

a court may sanction a defendant for obstruction, yet grant an adjustment for

acceptance of responsibility. See U.S.S.G. § 3E1.1, n. 4. Marshall's acceptance of

responsibility is not extraordinary. First, Marshall did not voluntarily cease

obstructing justice. She was in custody within one day of the court order only

because the United States Marshal arrested her. Second, although Marshall denies

(ever) using cocaine, traces of cocaine were discovered in her urine. The district

court did not clearly err.

III.

Marshall asserts that her sentence, under a mandatory sentencing scheme, is

erroneous under Booker,125 S.Ct. at 756-57, 769. Because Marshall did not object

to the Guidelines or make an Apprendi or Blakely argument in the district court, this

court reviews for plain error. United States v. Pirani, 2005 WL 1039976, at *3 (8th

Cir. Apr. 29, 2005) (en banc). To prevail, the defendant must show: 1) error, 2) that

is plain, 3) that affects substantial rights, 4) and seriously affects the fairness,

integrity, or public reputation of judicial proceedings. United States v. Cotton, 535

U.S. 625, 631 (2002). 
2

Marshall does not request unreasonableness review, either in her original or

supplemental briefing, nor does this court find a plain error. See Rule 52(b); United

States v. Olano, 507 U.S. 725, 732, 736 (1993).

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Here, the first two factors are satisfied: the district court erred by

(understandably) treating the Guidelines as mandatory, and the error is plain at the

time of appellate review. See Pirani, 2005 WL 1039976, at *4. Marshall, however,

fails to show that the error affects a substantial right, that is, a reasonable probability

of a lesser sentence. See id. at *5. First, though the sentence is at the bottom of the

Guidelines range, this "is insufficient, without more, to demonstrate a reasonable

probability that the court would have imposed a lesser sentence absent the Booker

error." Id. at *7. Second, the district court stated that it would impose an 87-month

sentence, if it were considering the (original) 70 to 87 month range. Third, nothing

in the record indicates the district court would have given any lesser sentence in this

case. Marshall has not met her burden of demonstrating a reasonable probability of

a more favorable sentence. See United States v. Finck, 2005 WL 1109474, at *5-6

(8th Cir. May 11, 2005).2

The judgment of the district court is affirmed.

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