* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### September 2, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

vs. ROBERTS SCHUYLER BENNETT, Defendant - Appellant. No. 05-1133 (D.C. No. 04-CR-411-B) (D.Colo.)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Defendant Roberts Schuyler Bennett pleaded guilty t o possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5) (B), and was sentenced to 71 months imprisonment, and three years supervised rel ease. Although Mr. Bennett’s offense and plea (December 3, 2004) occur red prior to the Supreme Court’s decision in United States v. Booker , 125 S. Ct. 738 (2005), his sentencing1 Mr. Bennett only takes issue with the additional three-levels of the fivelevel enhancement under U.S.S.G. § 2G2.4(b)(5)(D), because the count of conviction alleged at least ten images which would result in a two-level enhancement under § U.S.S.G. § 2G2.4(b)(5)(A). Mr . Bennett argues that his adjusted offense level should have been 19 resultin g in a guideline range of 33-41 months (criminal history category of II), instead o f 25 which indicates a guideline range of 63-78 months. - 2 - occurred subsequent to that decision, and the distr ict court treated the Sentencing Guidelines as advisory. On appeal, Mr. Bennett contends that the district c ourt erred by sentencing him based upon specific offense characteristics notcontained in the count of conviction of the indictment. According to Mr. Ben nett, because the count of conviction did not allege that 600 or more images w ere involved, or that some of the images involved a prepubescent minor or portray ed sadistic or masochistic conduct, the district court could not rely upon these facts in sentencing him. See Aplt. Br. at 12; U.S.S.G. § 2G2.4(b)(1) (2003) (two -level enhancement for material involving a prepubescent minor), § 2G2.4(b )(4) (four-level enhancement for material portraying sadistic or masochistic con duct), § 2G2.4(b)(5)(D) (fivelevel enhancement for 600 or more images). 1 Mr. Bennett makes this argument even though (1) he stipulated to the all of the fac ts underlying these specific offense characteristics and (2) the indictment (in a count which referenced the count of conviction, but was later dismissed) conta ined these offense characteristics. Mr. Bennett maintains that his se ntence must be tethered to those- 3 -

facts contained in the count he pleaded to, resulti ng in a maximum sentence of 41 months. In making this argument, Mr. Bennett invokes his S ixth Amendment right to fair notice of the charges against him and his F ifth Amendment right to indictment and grand jury presentment. He also rel ies upon the prohibition on double jeopardy and argues that applying the remedi al holding of Bookerto his offense would violate Griffith v. Kentucky , 479 U.S. 314 (1987). In a similar challenge involving a guilty plea and stipulated facts, we recently held that the Apprendi line of cases (including Booker ) does not require that factors supporting sentencing enhancements be alleged in the indictment. United States v. Glover , 413 F.3d 1206, 1208-09 (10th Cir. 2005). Like Mr

. Bennett, the defendant in Gloverpleaded prior to the Court’s decision in Booker

. Thus, we must reject Mr. Bennett’s claim that the “indictment, or more accurately, the facts alleged in the indictment’s c ount of conviction, capped any possible sentence he could receive.” Aplt. Br. at 11. Mr. Bennett concedes that in the current advisory g uideline system mandated by Booker , his argument has no merit. Id. ; II R. 9 (“Bookerfixes it, but it only fixes it prospectively.”); see also Booker , 125 S. Ct. at 761-62 (commenting on the difficulties of incorporating se ntencing factors into indictments were the guidelines mandatory). Instea d, he argues that because he- 4 -

was indicted and pleaded guilty prior to Booker , the district court was limited to sentencing him based upon facts alleged in the indi ctment’s count of conviction, even though he would not be entitled to a jury on t hose facts, having waived any such right. Aplt. Br. at 13. An obvious answer to this is that the facts serving as the basis for the challenged enhancements were cont ained on the face of the indictment, in a count that clearly referenced the count of conviction, thereby obviating any concerns about presentment to a grand jury. Mr. Bennett plainly had notice of those facts, having stipulated to the m as part of the plea. Regardless, Mr. Bennett’s argument is an invitation not only to ignore his admissions, but also to apply the substantive holdi ng of Bookerwhile disregarding the remedial holding (making the guide lines advisory) that in fact was applied in his case. This we cannot do. Booke r , 125 S. Ct. at 769 (both substantive and remedial holding must be applied to all cases on direct review); United States v. Rines , No. 04-4182, 2005 WL 1953505 at * 2 (10th Cir. Au g. 16, 2005) (rejecting invitation to apply only substanti ve holding). Moreover, the contended-for remedy in this case is precisely whatthe Supreme Court rejected in Booker–the companion case, Fanfan , was remanded even in the absence of a Sixth Amendment violation to apply the remedial holding. Booker , 125 S. Ct. at 769. Finally, Mr. Bennett’s argument is inconsistent with the broad power of sentencing courts to consider information beyond th e indictment. 18 U.S.C.- 5 -

§ 3661; United States v. Watts , 519 U.S. 148, 152-53 (1997) (per curiam). The premise of Mr. Bennett’s remaining arguments is that the indictment serves as a cap limiting any enhancement or departu re under the guidelines. We have rejected that premise. With that, we reject h is arguments that applying Bookerto his case violates substantive due process, rais es double jeopardy concerns, contravenes retroactivity principles, or results in sentencing him to a greater offense when he pleaded to a lesser.
AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge