* This order and judgment is not binding precedent, e xcept under the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

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

### June 30, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. STEPHEN RAMONT HARDRIDGE,

Defendant - Appellant. No. 02-5208 (D. Ct. No. 00-CR-126-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, EBEL , and HARTZ , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. A jury found Defendant-Appellant Stephen Ramont Hardridge guilty of conspiring to possess and distribute narcotics. Th e District Court sentenced Mr. Hardridge to 292 months’ incarceration to be follow ed by ten years’ supervised-2-

release and imposed $10,100 in assessments and fine s. We affirmed. See United States v. Hardridge , 100 Fed. Appx. 743 (10th Cir. June 7, 2004) (unpu blished) (“Hardridge I

”). The Supreme Court summarily reversed and reman ded our decision in light of United States v. Booker , 543 U.S. —, 125 S. Ct. 738 (2005). See Hardridge v. United States , — U.S. —, 125 S.Ct. 1020 (Jan. 24, 2005). We GRANT Mr. Hardridge’s motion to file a supplemental reply brief, REINSTATE all non-sentencing portions of our previous opinion , as well as our previous discussion of the imposition of fines, and upon rec onsideration AFFIRM Mr. Hardridge’s sentence

. I. BACKGROUND The Government prosecuted Mr. Hardridge for being amember of an extensive drug conspiracy. The government presente d evidence at trial showing that the central player in the conspiracy was Darre ll Bellamy of Phoenix, Arizona. From Phoenix, Mr. Bellamy coordinated shipments of powder cocaine, crack cocaine, and marijuana to various cities, including Tulsa, Oklahoma; Wichita, Kansas; and Detroit, Michigan. The government asse rts that Mr. Hardridge was a member of this conspiracy. A federal grand jury in dicted Mr. Hardridge for conspiring to possess and distribute cocaine, crackcocaine, and marijuana in violation of 21 U.S.C. § 846. After a twenty-three -day trial involving over fifty witnesses, a jury convicted Mr. Hardridge on all co unts.1 In Hardridge I, Mr. Hardridge also challenged the propriety of th e fines

the District Court imposed. He does not contest th e imposition of these fines on remand. As such, we reinstate our previous opinion in this regard. -3- In Hardridge I, Mr. Hardridge brought challenges to both his conv iction and his sentence. On remand from the Supreme Courthe once again challenges both his conviction and his sentence. The Supreme Court, however, remanded to us only “for further consideration in light of Booker v. United States .” Hardridge 125 S.Ct. at 1020. As we find nothing in Bookerthat calls Mr. Hardridge’s conviction into question, we limit our review on re mand to the sentence and reinstate all non-sentencing portions of our previo us opinion. II. DISCUSSION In the District Court and in Hardridge I, Mr. Hardridge challenged the District Court’s findings as to the type and amountof narcotics he trafficked and the factual basis for an obstruction of justice enh ancement under U.S. Sentencing Guidelines Manual § 3C1.1 (2001) (“U.S.S.G.”). 1 In Hardridge I, we reviewed these factual findings for clear error, see United States v. Shumway , 112 F.3d 1413, 1426 (10th Cir. 1997), and held that these fi ndings were supported by the record. Bookerdoes not cause us to reconsider this issue. See United States v. Doe , 398 F.3d 1254, 1257 & n.5 (10th Cir. 2005) (holdi ng post- Bookerthat “[w]hen reviewing a district court’s application of the Sentencing Guidelines,. . . we review any factual findings for clear error.”). As such, we re-adopt our-4-

previous holding that, based on the record, the Dis trict Court did not clearly err in finding that Mr. Hardridge trafficked 500 grams of crack cocaine and that, during trial, he passed a note to a witness in an attempt to influence her testimony and therefore obstruct justice. As such, we affirm ourholding that the District Court did not err in determining Mr. Hardridge’s sentence under the Guidelines. A. Of course, post- Booker , this does not end our analysis. In Booker , the Court “reaffirm[ed its] holding in Apprendi : Any fact (other than a prior conviction) which is necessary to support a sentenc e exceeding the maximum authorized by the facts established by a plea of gu ilty or a jury verdict must be admitted by the defendant or proved to a jury beyon d a reasonable doubt.” Booker , 125 S.Ct. at 756. “As a result, the Court held t hat mandatory application of the Guidelines violates the Sixth Amendment when judge-found facts, other than those of prior convictions, are employed to en hance a sentence.” United States v. Gonzalez-Huerta , 403 F.3d 727, 731 (10th Cir. 2005) (en banc). To remedy this error the Court “severed two provisions of the Sentencing Reform Act of 1984, . . . [n]amely, . . . 18 U.S.C. § 3553(b)( 1), which made the imposition of a Guidelines sentence mandatory in the vast majority of cases, and those portions of 18 U.S.C. § 3742(e) that established standards o f review on appeal.” Id

. “Henceforth, courts are still required to consider the Guidelines in determining-5-

sentences, but they are not required to impose a se ntence within the Guidelines range.” Id

. Here, based upon the drug-type, drug-amount, and ob struction-of-justice enhancements, the District Court determined that Mr . Hardridge had an offense level of 38 and a criminal history category of III. A mandatory application of the Guidelines produced a sentencing range of 292–365 m onths’ incarceration; the court sentenced him to 292 months. See U.S.S.G. Ch.5, Pt. A. Without the quantity of narcotics, type of narcotics, and U.S.S .G. § 3C1.1 enhancements, Mr. Hardridge would have had an offense level of 32, re sulting in a 151–188 month sentencing range. See id. Mr. Hardridge, however, was subject to a 240-month minimum sentence due to his previous drug-trafficki ng conviction . See 21 U.S.C. § 841(b)(1)(A) (“If any person commits [a § 841(b)( 1)(A)(i)–(viii)] violation after a prior conviction for a felony drug offense has be come final, such person shall be sentenced to a term of imprisonment which may no t be less than 20 years”). Thus, on remand, Mr. Hardridge asserts that the Dis trict Court violated his Sixth Amendment rights when it applied the Guidelines in a mandatory fashion and made factual findings (other than the fact of priorconvictions), which resulted in the imposition of a sentence 52 months above the ma ximum that would apply in the absence of such findings. See Gonzalez-Huerta , 403 F.3d at 731 (describing scenarios such as this as “constitutional Bookererror”).-6- B. Mr. Hardridge fails, however, to address the thresh old question of whether we review for plain error, because the Bookerissue was waived below, or for harmless error, because the issue was preserved. Compare Fed. R. Crim. P. 52(a) with Fed. R. Crim. P. 52(b). Apparently, Mr. Hardridge believes he preserved his Bookerchallenge, and thus we review for harmless error, as he relies heavily on United States v. Labastida-Segura , 396 F.3d 1140 (10th Cir. 2005)—a case involving harmless error. The Government contends, and we agree, that Mr. Hardridge did not make this argument in the Distric t Court because Mr. Hardridge only argued that there was insufficient evidence to support the court’s factual findings. We recently held that this sufficiency-o f-the-evidence argument does not preserve a constitutional Bookerchallenge on appeal. United States v. Dazey , 403 F.3d 1147, 1173–74 (10th Cir. 2005). Thus, we review only for plain error. Id. at 1174. “Plain error occurs when there is (1) error, (2) th at is plain, which (3) affects substantial rights, and which (4) serio usly affects the fairness, integrity, or public reputation of judicial proceed ings.” Gonzalez-Huerta , 403 F.3d at 732 (quotation marks omitted). Because we face constitutional Booker error here, we apply this test less rigidly than in the non-constitutional context. Dazey , 403 F.3d at 1174. There can be no doubt that Mr. Hardridge’s 292-month-7-

sentence, in light of Booker , was erroneously imposed and plainly so. See id. at 1174–75. Nonetheless, we cannot remand for resente ncing unless Mr. Hardridge can meet his burden to satisfy both the third and f ourth prongs of plain-error review as well. Id . at 1174–75, 1178. C. On remand, Mr. Hardridge does not specifically addr ess either the third or fourth prongs of plain-error review. The closest M r. Hardridge comes to addressing these issues is his assertion, unsupport ed by the record or law, that “[t]he Trial Court would have probably gone lower, had it not been working under a mandatory system.” We construe this as an argume nt that Mr. Hardridge’s substantial rights were affected. Mr. Hardridge’s unsupported intuitions, however, are not sufficient to satisfy the third pr ong of plain-error review. See Romano v. Oklahoma , 512 U.S. 1, 14 (1994) (holding in a capital case that the defendant could not demonstrate that substantial ri ghts were affected when that “conclusion necessarily rests upon one’s intuition. ”); Gonzalez-Huerta , 403 F.3d at 740–41 (Tacha, C.J., concurring). Mr. Hardridge , then, has failed to convince this Court to correct the sentencing error. D. To assure thorough post- Booker review of this case on remand, we have independently reviewed the record in an attempt to fashion an argument on Mr.-8-

Hardridge’s behalf supporting resentencing. Having done this review, we find no grounds for resentencing because Mr. Hardridge cann ot meet either the third or fourth prong of plain error review. To satisfy the third prong of plain-error review, M r. Hardridge “bears the burden to establish by a reasonable probability bas ed upon the record on appeal that his substantial rights were affected by the Di strict Court’s [finding of facts and] mandatory application of the Guidelines.” Id. at 736. As we outlined recently in Dazey , there are at least two ways to show that one’s su bstantial rights are affected in a constitutional Bookererror case. 403 F.3d at 1175. “First, if the defendant shows a reasonable probabi lity that a jury applying a reasonable doubt standard would not have found th e same material facts that a judge found by a preponderance of the evidence, the n the defendant successfully demonstrates that the error below affected his subs tantial rights.” Id . To conduct this inquiry, the court of appeals reviews the evid ence submitted at the sentencing hearing and the bases for objections the defendant made to the facts on which the sentence was predicated. Id . In Dazey , the defendant met this standard by “strenuously contest[ing] the factual basis for the sentencing enhancements [by] presenting [countervailing] evidence” that allowed us to “conclude [that] there is a reasonable probability that a jury evaluating the evidence presented at trial would not determine, beyond a reasonable doubt,” th at the factual predicate for-9-

the sentencing enhancements were proven. Id . at 1177. Here, we face a very different scenario. While the Government relied upon trial testimony to establish that Mr. Hardridge tra fficked 500 grams of crack cocaine, Mr. Hardridge offered no countervailing ev idence at trial or sentencing. Ms. Natale, a government trial witness, testified a s follows. After delivering six kilograms of cocaine powder to Mr. Hardridge and others in the conspiracy, she was instructed to return it because it was “bad” (i .e., brown and crumbly). She testified that the cocaine was bad because “when th ey cooked it [i.e., transformed the powder cocaine to crack cocaine], [it] was a da rk brown crumbly color.” She further testified that she “saw the cocaine powder and the cocaine base [i.e., crack cocaine,] . . . when [Mr.] Hardridge returned the s ix kilograms to her.” Mr. Hardridge argues that the testimony of Ms. Natale s hould be discounted because “she merely assumed that the powder had been cooked [and thus turned into crack cocaine]” and that “[s]he did not witness a cook, a nd no one told her about a cook.” Here, unlike Dazey , all we have is an attempt to discredit a witness. Cf. 403 F.3d at 1177. Mr. Hardridge presented no count ervailing evidence whatsoever in response to Ms. Natale’s testimony. As such, we cannot “conclude [that] there is a reasonable probability that a jury evaluating the evidence presented at trial would not determine, beyond a re asonable doubt,” that Mr. Hardridge cooked the powder cocaine to create 500 g rams of cocaine base. Id

.-10-

We face a similar issue with the obstruction of jus tice enhancement. This enhancement was based upon the following facts. Attrial, Mr. Hardridge passed a note to his girlfriend, Valvetta Boyd, who was pr esent in the courtroom. Pursuant to the note’s instructions, Ms. Boyd discarded the note after reading it. In preparation for her testimony, the government as ked her to reconstruct the note to the best of her memory. The reconstructed note read, “I know you and Rashonda are good friends. Tell her to tell her mo ther-in-law [i.e., Netha Beth Taylor, who was to be called as a witness the next day,] that they don’t have shit on us. They are trying to make a case. Put this l etter in the trash.” Mr. Hardridge claims that the note merely stated, “in v ulgar terms, that the government had no case against him.” In contrast, the Government, pointing to Ms. Boyd’s reconstruction of the note and her accompanying testimony, argues that the note was an attempt to discourage Ms. Tayl or from testifying. Again, unlike Dazey , all we have is an attempt to put a spin on what i s otherwise clear and conclusive testimony. Cf. 403 F.3d at 1177. As such, we cannot “conclude [that] there is a reasonable probability that a jury evaluating the evidence presented at trial would not determine, beyond a re asonable doubt,” that Mr. Hardridge attempted to influence a witness. Id

. The second way “a defendant may show that the distr ict court’s error affected his substantial rights [is] by demonstrati ng a reasonable probability that,-11-

under the specific facts of his case as analyzed un der the sentencing factors of 18 U.S.C. § 3553(a), the district court judge would re asonably impose a sentence outside the Guidelines range.” Id. at 1175 (note omited). This may be demonstrated when the district court states that th e defendant’s conduct, based on this particular record, did not warrant the minimum Guidelines sentence. Id . In this case, the District Court did not make any such statement. Thus, we conclude that Mr. Hardridge’s substantial rights were not af fected. E. Even if Mr. Hardridge could show that his substanti al rights were affected, he cannot show that the integrity of the judiciary would be harmed by affirming his sentence; thus, he is not entitled to resentenc ing. “In the context of an alleged constitutional error, the relaxed [plain-error] sta ndard means we do not require the exceptional showing required to remand a case o f non-constitutional error. Nevertheless, the defendant still bears the burden of showing that an exercise of our discretion is appropriate.” Id . at 1178. In the constitutional Bookererror context, “[e]vidence that would tend to support an exercise of our discretion under this st andard . . . include[s]: (a) a sentence increased substantially based on a Bookererror; (b) a showing that the district court would likely impose a significantly lighter sentence on remand; (c) a substantial lack of evidence to support the entire sentence the Guidelines required-12-

the district court to impose; (d) a showing that objective consideration of the § 3553(a) factors warrants a departure from the sente nce suggested by the Guidelines; or (e) other evidence peculiar to the d efendant that demonstrates a complete breakdown in the sentencing process.” United States v. Dowlin , — F.3d — 2005 WL 1155882 at *18 (10th Cir. 2005) (internal citations omitted). These factors do not favor resentencing in this case beca use we find Mr. Hardridge’s appeal nearly indistinguishable from our recent United States v. Magallanez opinion. — F.3d. —, 2005 WL 1155913 (10th Cir. 200 5). In Magallanez , the defendant, like Mr. Hardridge, was convicted of participation in a drug trafficking conspiracy. Id . at *1. The district court in Magallanez , as here, made factual findings as to the amount o f methamphetamine that the defendant trafficked that resulted in an e nhancement of his sentence in violation of the Sixth Amendment. Id . at *9. Nonetheless, we determined that the defendant failed to establish that this error s eriously affects the fairness, integrity, or public reputation of judicial proceed ings. Id

. We provided the following reasons in Magallanez . First, the defendant’s “sentence is within the national norm and there is no record evidence to support a lower sentence.” Id . We face the same situation here. The District C ourt sentenced Mr. Hardridge to the Guidelines sentence, which represents the national

norm. See Gonzalez-Huerta , 403 F.3d at 738–39. Further, Mr. Hardridge has-13-

presented no countervailing evidence at the sentenc ing hearing or at trial to support a lower sentence. Rather, he merely attack s the credibility of the Government’s witnesses. Second, in Magallanez , we found that “the district court did not merely find the sentencing-enhancement facts by a preponderance of the evidence. The court expressly noted that those facts were proved ‘beyon d any doubt in my mind.’” 2005 WL 1155913 at *6. We have similar statements from the bench here. At sentencing when Mr. Hardridge objected to the findi ng that he trafficked in crack cocaine, the District Court concluded: “[C]ertainly I say that at the trial when I heard the testimony I was pretty much convinced, an d I don’t think anybody questioned the fact that there was an attempt to co ok, and that that’s how they discovered the cocaine was bad . . . . [That is to say] it was to be converted into crack cocaine.” The District Court made similar st atements when Mr. Hardridge objected to the court’s finding as to the amount of crack cocaine. After hearing Mr. Hardridge’s objection, the court inquired if co unsel had “some testimony or evidence you want to put on” to substantiate the objection. Counsel replied, “No, Your Honor.” The court responded: “Well, it seems to the Court that the halfkilo, in view of what was in hand at the time, and in view of what the evidence indicates that intent was, to convert this, a half a kilo is a very, very conservative estimate.” Moreover, the court indicated that it “ thought [a finding of only 500-14-

grams] was quite low.” As we found in Magallanez , these statements in this case “strongly suggest[] that even with greater latitude , post- Booker , to take the weight of the evidence in support of sentencing enhancemen ts into account, the court would reach the same conclusion regarding drug quantity.” Id. at *9. Furthermore, the District Court made similar commen ts about its degree of certainty in its findings regarding the obstruction of justice enhancement. After considering Mr. Hardridge’s objection to the purpos e of the note the judge stated: “[T]he Court felt that it was certainly - - there w asn’t any other reason for that communication to be given. There was only one reas on, only one logical reason, for having it worded the way it was, and that was t o influence a prospective witness.” As we concluded in Magallanez : In light of the district court’s high degree of con fidence in its finding of drug quantity [and the intent behind the note to Ms. Boyd], the lack of any basis in the record to doubt the accura cy of the court’s calculations, and the absence of any reason to thin k the Guidelines range produced an inappropriate sentence under the facts of this case, a remand would be an exercise in futility. Id. at *10. Thus, we conclude that Mr. Hardridge canno t establish that affirming his sentence would seriously affect the fairness, i ntegrity, or public reputation of judicial proceedings. See also United States v. Duncan , 400 F.3d 1297 (11th Cir. 2005) (holding that the district court’s constituti onal Booker error did not rise to level of plain error, when it relied on judge-deter mined fact that cocaine powder had been converted into crack cocaine in order to s et drug defendant’s base-15-

offense level higher than it would have been set us ing only the jury’s special verdict). III. CONCLUSION On remand from the Supreme Court in light of Booker , we do not revisit our previous opinion affirming Mr. Hardridge’s conv iction. Further, on plainerror review, we cannot reverse Mr. Hardridge’s 292 -month sentence. Therefore, we GRANT Mr. Hardridge’s motion to file a supplemental reply brief, REINSTATE all non-sentencing portions of our previo us opinion, as well as our previous discussion of the imposition of fines, andupon reconsideration in light of Booker AFFIRM Mr. Hardridge’s sentence

. Ebel, J. concurs in the result.

ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge