* After examining the briefs and the appellate recor d, this three-judge panel

has determined unanimously that oral argument wouldnot 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 case is therefore ordered sub mitted without oral argument. 

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

### July 1, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PAUL FREDERICK GLOVER, JR., Defendant - Appellant. No. 04-5150

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

D.C. No. 03-CR-182-H)

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. *

William D. Lunn, Tulsa, Oklahoma, for Defendant-App ellant. David E. O’Melia, United States Attorney and Kevin Danielson, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-App ellee.

KELLY , Circuit Judge.- 2 -

Defendant-Appellant Paul Frederick Glover, Jr. pledguilty to conspiracy to manufacture and distribute 500 grams or more of a m ixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. He was sentenced to 252 months incarceration to be followed by five years of supervised release. On appeal, he contends thathis sentence was improperly increased based upon facts which were not charged i n the indictment. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U .S.C. § 3742(a), and we affirm.

Background Mr. Glover was indicted in a nine-count indictment for various offenses in connection with the manufacture and distribution of methamphetamine. On April 30, 2004, he pled guilty to a conspiracy count purs uant to a plea agreement. Aplt. App. 2 at 4. At the change of plea hearing, Mr. Gl over objected to various paragraphs in the overt acts section of the conspir acy count as lacking a factual basis. By agreement of the parties, various paragr aphs were deleted. Id. at 18-21. As part of the factual basis, the plea agreement co ntained a paragraph of admitted facts. Aplt. App. 3 at 7-8. It included facts rel evant to a two-level increase in the offense level for possession of a firearm during th e offense, U.S.S.G. § 2D1.1(b)(1), and a four-level enhancement based on defendant’s role in the1 The increase in the offense level for possession of a firearm during the offense, U.S.S.G. § 2D1.1(b)(1), and the role in th e offense upward adjustment, U.S.S.G. § 3B1.1(a), will be referred to together a s “enhancements.” - 3 - offense, U.S.S.G. § 3B1.1(a), contained in the pre -sentence report (PSR). III R. at 14-15. In the plea agreement, Mr. Glover admitt ed that he “sold a lot of the finished methamphetamine for cash or traded it for other assets such as firearms, automobile parts, or electronic equipment,” and that “[s]ome people also brought to me or obtained for me at my request material or equipment that I would use in the process of making methamphetamine.” Aplt. App. 3 at 7-8. In written objections and at the sentencing hearing , Mr. Glover objected to the enhancements, 1 both on factual grounds and based on Blakely v. Wa shington , 542 U.S. __, 124 S. Ct. 2531 (2004). III R. PSR Ad dendum at 1, 11; Aplt. App. 5 at 5-12. In his objections to the PSR, he admitted that he possessed firearms in the course of his methamphetamine distribution acti vities, including as a medium of exchange. III R. PSR Addendum at 11. He also i ndicated that he would not object to a two-level upward adjustment “pre-Blakel y ” for his role in the offense, maintaining that he was assisted only by three pers ons, not the requisite five or more necessary for a four-level adjustment. At the sentencing hearing, Mr. Glover then stipulated to a two-level increase in t he offense level for possessing firearms and compromised with the government for a two-level enhancement for2 The parties stipulated to a base offense level of t hirty-two. Aplt. App. 5 at

3. The district court accepted the PSR’s suggestio n of a three-level downward adjustment for acceptance of responsibility under U .S.S.G. § 3E1.1(a), leaving an offense level of twenty-nine before the four-level increase—two levels for leadership role and two levels for possession of a firearm. Aplt. App. 5 at 12. - 4 - being a leader or organizer. 2 Aplt. App. 5 at 5-12. Mr. Glover made various objections to paragraphs in the PSR relating to dru g quantities. Id. at 13. The district court then sentenced Mr. Glover to 252 mon ths imprisonment, the upper part of the 210 to 262 months guideline range.

Discussion At the sentencing hearing, Mr. Glover argued that t he factual basis for the enhancements was not included in the amended indict ment and that his statements in the plea agreement were not sufficient admission s to justify the enhancements. Aplt. App. 5 at 4-5, 10. On appeal, he argues thatthe term of his sentence should not have been increased based on facts that were no t alleged in the indictment under Apprendi v. New Jersey , 530 U.S. 466 (2000) and United States v. Booker , __ U.S. __, 125 S. Ct. 738 (2005). Aplt. Br. 7-8. We find no merit in this argument. In regard to sentencing, a defendant may waive his Sixth Amendment rights under Apprendi and Blakelyby stipulating to facts underlying sentence enhancements. Blakely , 124 S. Ct. at 2541; United States v. Porter , 405 F.3d- 5 -

1136, 1143 (10th Cir. 2005) (holding that a defenda nt admitting facts upon which the court determined the sentence does not violate the Sixth Amendment under Apprendi or Booker ). Mr. Glover admitted in the plea agreement that he traded finished methamphetamine for other assets, includin g firearms. He argues that this statement does not furnish a nexus between the firearms and the conspiracy offense, so he cannot be deemed to have admitted th e facts necessary for a U.S.S.G. § 2D1.1(B) enhancement. This argument is thin—trading drugs for guns does provide the requisite nexus. United States v. Rogers . 150 F.3d 851, 858 (8th Cir. 1998). Mr. Glover also admitted facts supporting the firea rms enhancement in connection with his sentencing. In his objections to the PSR, he admitted that he provided firearms that had been exchanged for metha mphetamine to another person regularly. III R. PSR Addendum at 11. Were that not enough, at the sentencing hearing, Mr. Glover’s counsel, in respon se to the court’s inquiry of whether the firearm enhancement was appropriate, co mmendably admitted that “it’s fairly seamless in light of the statement that’s made in the plea agreement.” Aplt. App. 5 at 5-6. Counsel did preserve his argu ment that such facts needed to be alleged in the indictment, though. With that is sue preserved, counsel stipulated that the facts had been established for the enhancement. Thus, given that the facts were admitted by Mr. Glover and are sufficient to warrant the- 6 -

enhancement under the law, Mr. Glover has no Blakel yclaim on the firearms offense characteristic. Turning to the role-in-the-offense adjustment, we n eed not decide if Mr. Glover’s statement in the plea agreement (that “som e people” at his request furnished him material or equipment to make methamp hetamine), is a sufficient admission to support a four-level enhancement for b eing an organizer or leader of five or more participants. In response to the PSR, Mr. Glover objected to a fourlevel, but not to a two-level, upward adjustment, “ pre-Blakely .” III R. PSR Addendum at 11. Mr. Glover maintained that no more than three persons assisted him on a regular basis in drug distribution. Plain ly, this is a sufficient admission by Mr. Glover to warrant an additional two-level U. S.S.G. §3B1.1(c) enhancement. United States v. McKneely , 69 F.3d 1067, 1079 (10th Cir. 1995). Further, were there any doubt about Mr. Glover’s ad mission, at the sentencing hearing Mr. Glover’s counsel stipulated to the two- level adjustment, while preserving his argument that the facts had to be al leged in the indictment. Aplt. App. 5 at 12. As before, we conclude that Mr. Glov er’s admissions to the requisite facts supporting a two-level role-in-the- offense adjustment eliminate any Blakelyclaim. Bookerdoes not alter this conclusion. In Booker , the Court “reaffirm[ed its] holding in Apprendi : Any fact (other than a prior conviction) which is- 7 -

necessary to support a sentence exceeding the maxim um authorized by the facts established by a plea of guilty or a jury verdict m ust be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Bo oker , 125 S. Ct. at 756. However, the Court did not hold that facts supporti ng sentencing factors had to be included in the indictment. Indeed, Justice Breyer , in the Court’s remedial opinion, discussed the difficulty such a requiremen t would cause. Id. at 761. Specifically, Justice Breyer commented on the diffi culty courts and counsel would have in a jury trial with an indictment alleging “w hether the defendant possessed a firearm, . . . whether he was an organizer, [or] leader” and other facts which are not necessary elements of the crime. Id. at 761-62; see U.S.S.G. §§ 2B3.1 (robbery), 3B1.1 (role in the offense). Defendants would have difficulty raising defenses against both the alleged crime and the enh ancements, and juries might be confused given the complexity of the sentencing gui delines. Id. at 762. Therefore, the Court concluded that applying the Si xth Amendment requirement to the sentencing enhancements under the Guidelines “would create a system far more complex than Congress could have intended.” I d. at 761. The Fourth Circuit recently rejected a similar chal lenge in the guilty plea context—that upward adjustments and departures unde r the Guidelines must be alleged in the indictment and found by a jury beyon d a reasonable doubt—stating:

A plea of guilty submits the defendant to fact find ing by the judge, rather than the jury. . . . For over 200 ye ars, the trial courts3 See Gonzalez-Huerta , 403 F.3d at 750 n.3 (Briscoe, J., dissenting)

(observing that in United States v. Labastida-Segur a , 396 F.3d 1140, 1142-43 - 8 - have had jurisdiction to fix sentences, except in p eculiar circumstances such as the present death penalty statute. Certainly this includes the authority for the judge to find f acts unless otherwise prohibited. Bookerhas not changed that. . . . The district court did not err in its fact fi nding because the facts were based on the defendant’s own admissions. Ther efore, we are of opinion and hold the defendant’s argument under Bla kelyto be without merit. United States v. Bartram , __ F.3d __, 2005 WL 994828, at *6 (4th Cir. Apr. 29, 2005). Although there is no Sixth Amendment violation here , there is a nonconstitutional Bookererror because the district court treated the guide lines as mandatory, rather than advisory. See United States v. Gonzalez-Huerta , 403 F.3d 727, 731-32 (10th Cir. 2005) (discussing the differ ence between constitutional and non-constitutional Bookererror). In Booker , the Court remedied the constitutional violation of the Sentencing Guidelin es by invalidating their mandatory application and instead requiring courts to apply them in an advisory manner. 125 S. Ct. at 756-57 (excising 18 U.S.C. § § 3553(b)(1), 3742(e)). Had the district court treated the Guidelines as adviso ry, we would review the sentence for reasonableness with regard to § 3553(a). See Id. at 765-66. Assuming that Mr. Glover’s Apprendi objection also preserved his nonconstitutional Bookerargument given the unsettled state of the law, 3 we review(10th Cir. 2005), a defendant’s constitutional obje ction after Blakelywas

sufficient to preserve a non-constitutional Bookererror given the difficulty of predicting the remedy that was adopted the Supreme Court in Booker ). - 9 - whether the district court’s non-constitutional err or was harmless as the government urges. See United States v. Riccardi , 405 F.3d 852, 874-75 (10th Cir. 2005) (applying harmless error analysis to a preserved constitutional Booker error); United States v. Labastida-Segura , 396 F.3d 1140, 1142-43 (10th Cir. 2005) (applying harmless error analysis to a preserved non-constitutional Booker error). Fed. R. Crim. P. 52(a) provides that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights mu st be disregarded.” Considering a misapplication of the Guidelines under 18 U.S.C. 3742(f)(1), the Supreme Court held that “once the court of appeals has decided th at the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the senten ce imposed.” Williams v. United States , 503 U.S. 193, 203 (1992) (citing Fed.R.Crim.P. 52 (a)); see also LabastidaSegura , 396 F.3d at 1142-43. In non-constitutional harml ess error cases, the government bears the burden of demonstrating, by a preponderance of the evidence, that the substantial rights of the defend ant were not affected. See Williams , 503 U.S. at 203. The government relies heavily on the fact that the district court consulted- 10 -

the Guidelines and that Mr. Glover stipulated to ke y facts concerning his sentence. More to the point, all indicators sugges t that any sentence on remand would be the same. Mr. Glover marshaled facts and argument during allocution to persuade the court to give a sentence at the low end of the range. Cf. Gonzalez-Huerta , 403 F.3d at 735-36 (noting that pre-Booker , defendants had every reason to present mitigating circumstances to a district court eliminating the need to remand so the court may consider additional circumstances). Still, the district court exercised its discretion to sentence Mr. Glover near the top of the applicable Guideline range. Compare Riccardi , 405 F.3d at 876 (holding that a constitutional Bookererror was harmless where the district court senten ced at the top of the range), withLabastida-Segura , 396 F.3d at 1143 (holding that a nonconstitutional Bookererror was not harmless where the district court se ntenced at the bottom of the range). The district court based the enhancements on Mr. Glover’s actual and admitted conduct. This approac h was followed in Riccardi , 405 F.3d at 876, and is supported by Booker . 125 S. Ct. at 757 (adopting an approach that “maintain[s] a strong connection betw een the sentence imposed and the offender’s real conduct”). Finally, the court remarked at sentencing that a se ntence at the higher end of the guideline range was justified in light of Mr . Glover’s criminal history and the threat he poses to the community. Aplt. App. 5 at 33. These remarks suggest- 11 -

that the court believed that the sentence was appro priate considering the circumstances. Therefore, although the district co urt erred in mandatorily applying the Guidelines, we are satisfied that the error was harmless and must be disregarded. AFFIRMED.