* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See 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 

### May 15, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-6347

v. (W. D. of Okla.) RAVON LARNELL PATTERSON,

Defendant-Appellant. (D.C. No. CR-04-39-H)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
RaVon Patterson appeals the 105-month sentence he r eceived after pleading guilty to armed bank robbery. He argues that the d istrict court committed reversible error by enhancing his sentence under th e United States Sentencing Guidelines. The government responds that Patterson waived his right to demand a jury under United States v. Booker , 543 U.S. 220 (2005), when he pled guilty and-2-

that any resulting sentencing error was harmless. We agree with the government and AFFIRM. I. Background Patterson pled guilty in the Western District of Ok lahoma to bank robbery. The factual basis for that plea was set forth in th e plea agreement: That on or about February 3, 2004, [Patterson] tookmoney from the person or presence of a bank teller; that he did so using force, violence, and intimidation; that the money was under the care , custody, control, management and possession of MidFirst Bank . . . ; [and] that the deposits of MidFirst Bank were then insured by the Federal Deposit Insurance Corporation. Vol. 1, Doc. 49, Pg. 2. During the plea colloquy, Patterson further explained that he entered the bank with an accomplice and yelled f or everybody to get down. He also admitted two additional facts: (1) his accompl ice did not say anything to the people in the bank, and (2) the pair left with $568

. Prior to sentencing, a Presentence Investigation Re port (PSR) calculated Patterson’s sentence under the Guidelines. The PSRbegan with a base offense level of 20, which was then enhanced two levels fortaking property of a financial institution. See USSG § 2B3.1(a), (b)(1). The PSR also reported that Patterson’s codefendant, Jesse Shaw, had hit the bank manager i n the face, knocking out teeth, and included a four-level enhancement for “s erious bodily injury.” See id. § 2B3.1(b)(3)(B). With a three-level reduction foracceptance of responsibility, the PSR recommended a total offense level of 23. C ombined with Patterson’s-3-

Category V criminal history, this offense level yie lded a guideline range of 84 to 105 months. Patterson objected to this analysis based on Blakely v. Washington , 542 U.S. 296 (2004), which was decided in June 2004, ju st two days after his guilty plea. Patterson asked to continue his sentencing h earing until after the Supreme Court issued an opinion in then-pending Booker , but the court denied this request and sentenced Patterson on October 15, 2004. At that hearing, the court heard testimony from the bank manager, describing his injuries, and rejected Patterson’s Blakelyargument that the Guidelines should not apply to his case. Following the calculation set forth in the PSR, the court sentenced Patterson to 105 months in prison, the high end of the guideline range. Although the court recognized Patterson’s “commitment to turning around his life,” it concluded the sentence was appropriate in light of Patterson’s recent, substantial criminal record that reflected “an ongoing level of serious criminal activity.” Vol. II, Pg. 23. II. Analysis Patterson claims on appeal that the district court violated the Sixth Amendment by enhancing his sentence under mandatory sentencing guidelines. The Supreme Court in Booker , held that the mandatory application of sentencing enhancements under the Guidelines violated a defend ant’s Sixth Amendment right-4-

to a jury trial. 543 U.S. at 229. Although this s ituation did not arise in every case, the Supreme Court imposed a sweeping remedy t hat made the Guidelines advisory in all criminal cases, including those pen ding on appeal. Id. at 268. Subsequent to Booker , we, like many other circuits, recognized that def endants on appeal could raise constitutional and nonconstituti onal challenges to a sentence based on the mandatory application of the Guideline s. United States v. GonzalezHuerta , 403 F.3d 727, 731 (10th Cir. 2005). Because the district court enhanced Patterson’s sen tence based on facts not found by a jury or admitted in the plea agreement, he raises both constitutional and nonconstitutional claims. With respect to the former, the government responds that Patterson waived his Sixth Amendment right to a jury trial at sentencing when he pled guilty to the offense, so h e should not be allowed to raise a Sixth Amendment challenge on appeal. We ag ree. We recently held that where a defendant “waive[s], without qualification, [his] right to a jury trial in [his] guilty plea, . . . [he] may not [on appeal] assign as error the failure of the district court to affor d [him] a jury determination of facts relevant to sentencing.” United States v. Leach , 417 F.3d 1099, 1104 (10th Cir. 2005). Here, Patterson waived in writing and in open court his right to a jury1 In a document captioned Waiver of Jury Trial, Patt erson stated:

I, the undersigned defendant, having been fully adv ised of the charges against me and of my rights in connection with the charges, do hereby waive those rights, including my right to a trial b y jury, and agree to enter a plea of guilty to the court as provided by Rule 11 of the Federal Rules of Criminal Procedure. Vol. I, Doc. 47. In a separate Petition to Enter a Plea of Guilty, he acknowledged that he understood he had “the right to a speedy an d public trial by jury” and that by pleading guilty he “will be found guilty withouta trial and . . . will have given up all of the above rights.” Vol. I, Doc. 48, Pg. 2 . The court further confirmed these waivers at the plea hearing. -5- trial, with a waiver almost identical to the defend ant’s in Leach

. 1 Thus, we must conclude on this authority that Patterson waived hi s right to have a jury determine sentencing facts under a mandatory guideline scheme

. This conclusion does not end the analysis because t he waiver does not include a waiver of Patterson’s right to be sentenc ed under an advisory guideline regime. The government effectively concedes this a rgument, responding instead that the error was harmless. Indeed, where a defen dant raised a Blakely argument below, as here, we review alleged Bookererrors for harmlessness. United States v. Marshall , 432 F.3d 1157, 1160 (10th Cir. 2005). “In non-co nstitutional harmless error cases, the government bears the burd en of demonstrating, by a preponderance of the evidence, that the substantial rights of the defendant were not affected.” Id. at 1162 (quotations omitted). However, “[a]n erro r with respect to sentencing does not affect substantial r ights when it did not affect the-6-

sentence imposed by the district court.” United States v. Ollson , 413 F.3d 1119, 1120 (10th Cir. 2005). We have repeatedly held that the government satisfies this burden where the district court sentences at or nea r the top of the guideline range. See, e.g., United States v. Paxton , 422 F.3d 1203, 1207–8 (10th Cir. 2005); United States v. Riccardi , 405 F.3d 852, 876 (10th Cir. 2005). Here, the district court concluded the guideline ra nge was 84 to 105 months. Although it could have imposed a lower sen tence, it exercised its discretion to impose the maximum sentence it could: 105 months. Where the judge “exercised his limited discretion under the p re- Booker system to give [the defendant] the highest permissible sentence, there is no reason to think the judge would exercise his now-greater discretion to reduce the sentence.” Riccardi , 405 F.3d at 876. Thus, we conclude that the nonconstit utional Bookererror in this case was harmless. CONCLUSION For these reasons, we AFFIRM. Entered for the court Timothy M. Tymkovich Circuit Judge