*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### August 16, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SELENA MATA, also known as Selena Gerhardt, Defendant - Appellant. No. 04-8042 (D. Wyoming) (D.Ct. No. 03-CR-166-02-J)

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is therefore ordered submitted without oral argument. Selena Mata, aka Selena Gerhardt, was sentenced to 210 months-2-

imprisonment following her guilty plea to conspirac y to possess with intent to distribute and to distribute 500 grams or more of m ethamphetamine. She appeals, arguing she was not given the proper amount of sent encing credit and was sentenced in violation of Blakely v. Washington , 124 S.Ct. 2531 (2004). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm. I. Background On July 23, 2003, Mata, while serving a six-year st ate court prison term for possession with intent to distribute a controlled s ubstance, was charged in the United States District Court for the District of Wy oming with conspiracy to possess with intent to distribute and to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)( 1), (b)(1)(A). Mata eventually pled guilty. At the change of plea hear ing and in her plea agreement, Mata stipulated that the amount of methamphetamine involved in the conspiracy was more than 1.5 kilograms but less than five kilo grams. A presentence investigation report (PSR) was prepared. The probation officer determined Mata’s offense inv olved 2.04 kilograms of methamphetamine, establishing a base offense lev el of 34. See USSG §2D1.1(a)(3) and (c)(3) (assigning a base offense l evel of 34 for “[a]t least 1.5 KG but less than 5 KG of Methamphetamine . . .”). This drug quantity included1 Relying on Crawford v. Washington , 541 U.S. 36 (2004), Mata argued at

sentencing that the district court and probation officer’s use of her brother’s hearsay statements to establish drug quantity violated her Sixth Amendment right to -3- twelve ounces (340 grams) of methamphetamine which Mata’s brother sold to other individuals after Mata’s arrest. According t o her brother, Mata asked him to “take care of” (i.e. continue to supply methampheta mine to) these individuals after her arrest. (R. Vol. IV at 5.) The probatio n officer also recommended a two-level enhancement to the base offense level und er USSG §2D1.1(b)(1) based on the offense involving the possession of a firear m, a “dangerous weapon.” This recommendation was based on the seizure of a .25 ca liber handgun (along with thirteen grams of methamphetamine, a scale, pay/owe sheets and other drug paraphernalia) from Mata’s residence. Mata informe d investigators she needed the firearm for protection. Lastly, the officer re commended a three level downward adjustment to the base offense level underUSSG §3E1.1 for acceptance of responsibility. Based on a total off ense level of 33 and a criminal history category V, the probation officer determine d the applicable guideline range was 210 to 262 months imprisonment. Mata filed two material objections to the PSR. Fir st, she argued she should not be held accountable for the twelve ounces of me thamphetamine her brother sold to other individuals, arguing she never inform ed her brother to continue to supply methamphetamine to these individuals after s he was arrested. 1 She alsoconfrontation. In Crawford , the Supreme Court held that “testimonial” hearsay is inadmissible at trial unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. 541 U.S. at 68. On appeal, she re-iterates this argument in a one paragraph statement in her opening brief. [Apt’s Br. at 16] Even assuming she has adequately raised this issue for our review, it fails. Crawford applies to the right to confrontation at trial, not sentencing. We have determined that neither the Federal Rules of Evidence nor the Confrontation Clause apply to non-capital sentencing proceedings. See United States v. Hershberger , 962 F.2d 1548, 1554 (10th Cir. 1992) (reaffirming Tenth Circuit’s position that constitutional provisions regarding the Confrontation Clause are not required to be applied during sentencing proceedings); United States v. Beaulieu , 893 F.2d 1177, 1179-81 (10th Cir. 1990) (concluding Federal Rules of Evidence do not apply at sentencing and reliable hearsay evidence can be considered in the sentencing determination); United States v. Sunrhodes , 831 F.2d 1537, 1543-44 (10th Cir. 1987) (concluding that the requirements mandated in a criminal trial as to confrontation and cross-examination are not applicable at sentencing proceedings). The Federal Rules of Evidence themselves indicate they do not apply to sentencing proceedings. SeeF ED . R. EVID . 1101(d)(3). Because the Sixth Amendment’s Confrontation Clause does not apply at sentencing, Crawford also does not apply. Nothing in the Crawford

decision indicates otherwise.

-4- objected to the two level enhancement for possessio n of a dangerous weapon, claiming the .25 caliber handgun could not be used to support this enhancement because it was inoperable and wrapped in Saran Wrap

. On April 5, 2004, Mata appeared for sentencing. As to Mata’s objection to the twelve ounces of methamphetamine her brother so ld to other individuals, the court determined it was irrelevant as it did not ch ange the guideline calculation, which was based on the amount of methamphetamine sh e agreed to at her change of plea hearing (i.e. more than 1.5 kilograms but l ess than five kilograms). The court also overruled her objection to the two-level enhancement for possession of a dangerous weapon, concluding that even if the han dgun was inoperable, it still2The definition of “dangerous weapon” under USSG §2D1.1(b)(1) is found in the

Commentary to USSG §1B1.1. USSG §2D1.1, comment. (n.3). “‘Dangerous weapon’ means (i) an instrument capable of inflicting death or serious bodily injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily injury but [] closely resembles such an instrument . . . .” USSG §1B1.1, comment. (n.1(D)).

3 Pursuant to the plea agreement, if Mata fully and truthfully cooperated with the government, the government would recommend at the time of sentencing or within one year of sentencing a three-level downward departure pursuant to USSG § 5K1.1. Although the government did not make such a motion at the sentencing hearing, it informed the court that Mata was cooperating. It is unclear from the record whether the government ever filed the § 5K1.1 motion.

4Mata did not waive her right to appeal in her plea agreement. -5- met the definition of dangerous weapon under the gu idelines because it closely resembled one. 2 Believing that a sentence at the low end of the g uideline range was “more than adequate . . . to punish the conductin this matter,” the court sentenced Mata to 210 months imprisonment. 3 (R. Vol. II at 12.) Consistent with the government’s recommendation, the court orally o rdered Mata’s sentence to run concurrent to her state court prison term and t hat Mata be given credit for time served beginning on the date she was first inc arcerated on the underlying state drug charge, January 14, 2003. In the formal judgment, the court re-iterated its “time served” determination, albeit in the form of a recommendation to the United States Bureau of Prisons (BOP). This appeal followed. 4
II. Discussion Mata raises two arguments on appeal: (1) she was no t given the proper credit for time served and (2) she was sentenced in violation of Blakely.5Although the district court orally ordered at sentencing that Mata receive credit

for time served as of the date she entered state custody, it had no authority to do so. Nevertheless, a remand is not required because the order of judgment expressly refers to this “time served” determination as a recommendation only. -6- A. Sentencing Credit Mata contends that despite her agreement with the g overnment that her federal sentence would begin to run on January 14, 2003, the date she entered state custody, and the district court’s order direc ting the same, she only received credit for sixty-eight days. She claims she should have received over 300 days of credit. Although somewhat unclear, it appears Mata ’s argument is that despite the district court’s recommendation she receive credit from the time she entered state custody, the BOP has not provided her with that cre dit. Mata does not substantiate this claim with any documentation. Ho wever, even assuming her allegations are true, her remedy lies with the BOP. A district court has no authority to compute or award sentencing credit at sentencing; rather, it is the Attorney General, through the BOP, which has the po wer to grant sentencing credit in the first instance. United States v. Wilson , 503 U.S. 329, 334 (1992); United States v. Jenkins , 38 F.3d 1143, 1144 (10th Cir. 1994). Thus, Mata must first raise this issue with the BOP. Jenkins , 38 F.3d at 1144. If dissatisfied with the BOP’s determination, she may then seek judicial review. 5 Id.-7-

B. Blakely Mata contends her Sixth Amendment right to a jury t rial, as interpreted by Blakely , was violated at sentencing. Specifically, she as serts her base offense level was improperly enhanced to 34 based on the di strict court’s factual finding that her offense involved more than 1.5 kilograms o f methamphetamine. She claims her guilty plea only established that her of fense involved more than 500 grams of methamphetamine. She also disputes the tw o-level enhancement under USSG §2D1.1(b)(1) based on the district court’s fin ding that she possessed a “dangerous weapon.” After briefing was completed in this case, the Supr eme Court decided United States v. Booker , 125 S.Ct. 738 (2005). In Booker , the Supreme Court extended its holding in Blakelyto the federal sentencing guidelines, holding that the Sixth Amendment requires “[a]ny fact (other tha n a prior conviction) which is necessary to support a sentence exceeding the maxim um authorized by the facts established by a plea of guilty or a jury verdict [ to] be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 755-56. To remedy the constitutional infirmity of the guidelines, Bookerinvalidated their mandatory nature, requiring the district court to consult the m in an advisory fashion. Id. at 756-57 (severing and excising 18 U.S.C. §§ 3553(b)( 1), 3742(e)). Although Mata has not sought to file supplemental briefing addres sing Booker , raising the Sixth-8-

Amendment issue pursuant to Blakelyin her opening brief is sufficient to invoke Bookeras well. United States v. Trujillo-Terrazaz , 405 F.3d 814, 817 (10th Cir. 2005). See also Booker , 125 S.Ct. at 769 (stating that “both [its] Sixth Amendment holding and [its] remedial interpretation of the Sentencing Act” must be applied to all cases on direct review). Consequ ently, we will apply the Sixth Amendment analysis of both Bookerand Blakelyto this case. Because Mata did not raise a Sixth Amendment violat ion before the district court, we review for plain error. United States v. Gonzalez-Huerta , 403 F.3d 727, 730 (10th Cir. 2005) (en banc). To establish plain error, Mata must demonstrate there is (1) error, (2) that is plain and (3) the e rror affects her substantial rights. United States v. Dazey , 403 F.3d 1147, 1174 (10th Cir. 2005); Gonzalez-Huerta , 403 F.3d at 732. If these three prongs are met, we may exercise our discretion to correct the error if Mata establishes “the error se riously affects the fairness, integrity, or public reputation of judicial proceed ings,” i.e. the fourth prong of plain error review. Dazey , 403 F.3d at 1174; see also Gonzalez-Huerta , 403 F.3d at 736-37. The first two prongs of the plain error standard ha ve been met—there was error and the error was plain. Gonzalez-Huerta , 403 F.3d at 732. However, contrary to Mata’s arguments, the error was “non-co nstitutional Bookererror.” Id. at 731-32 (holding “non-constitutional Bookererror” occurs when the district-9-

court applies the guidelines in a mandatory rather than advisory fashion, even though the resulting sentence was calculated based solely upon facts admitted by the defendant or found by a jury). Mata admitted a t her change of plea hearing that her offense involved more than 1.5 kilograms b ut less than five kilograms of methamphetamine, supporting a base offense level of 34. As to the gun enhancement, even if this enhancement had been omitted from the court’s guideline calculations (and giving Mata the benefitof the three-level acceptance of responsibility adjustment), the applicable offen se level would have been 31, resulting in a guideline range of 168 to 210 months imprisonment. Mata received a 210-month sentence—a sentence the district court could have imposed without the possession of a dangerous weapon enhancement. Therefore, no constitutional error occurred as a result of this enhancement. See United States v. Yazzie , 407 F.3d 1139, 1144 (10th Cir. 2005) (en banc) (“ Bookermade clear that it is the actual sentence, not the sentencing range, that mus t be increased based upon judge-found facts in order to violate the Sixth Ame ndment . . . .”). Thus, no Sixth Amendment violation occurred at sentencing. Moving to the third prong of plain error review, Mata must show that the district court’s erroneous mandatory application of the guidelines affected her substantial rights, that is, that it “affected the outcome of the district court proceedings.” Dazey , 403 F.3d at 1175 (quotations omitted). However, we need-10-

not decide whether Mata has satisfied the third pro ng of the plain error standard because, even if she has, we conclude she has not m et the fourth prong. See Gonzalez-Huerta, 403 F.3d at 736 (concluding it was unnecessary to d etermine whether the third prong of the plain error test was met because the fourth prong must also be satisfied to obtain relief and the fou rth prong was not met). “Under the fourth prong of plain-error review, a co urt may exercise its discretion to notice a forfeited error only if it s eriously affects the fairness, integrity, or public reputation of judicial proceed ings.” Id. If “non-constitutional Bookererror” is involved, as in this case, the standard for satisfying the fourth prong is “demanding”—the defendant must show that t he error is “particularly egregious” and that our failure to notice it would result in a “miscarriage of justice.” Dazey , 403 F.3d at 1178 (quotations omitted) ; Gonzalez-Huerta , 403 F.3d at 736-37. We have recognized that in most ca ses involving “nonconstitutional Bookererror” the defendant will be unable to satisfy the fourth
prong. See Trujillo-Terrazaz , 405 F.3d at 820-21 (recognizing the difficulty in establishing the fourth prong in cases involving “n on-constitutional Bookererror” but finding that defendant had satisfied the fourth prong). Mata has not met this demanding standard. Mata received a sentence within the national norm a s established by the guidelines and there is no evidence supporting a lo wer sentence. See Gonzalez--11-

Huerta , 403 F.3d at 738-39 (considering in fourth prong a nalysis whether the defendant received a sentence within the guidelines /national norm and whether the record supported a lower sentence). At sentenc ing, the district court recognized the devastating effects the use of metha mphetamine had on Mata’s life and her potential to lead a “worthwhile life should she be able to deal with [her] substance abuse.” (R. Vol. II at 12.) It also ack nowledged that the troubles Mata had experienced early in life probably exposed her to substance abuse but noted that she needed to make better choices. Moreover, it indicated that “the havoc that has occurred in [Mata’s] life is substantial p unishment in and of itself” and sentenced her at the low end of the guideline range , concluding such sentence was “more than adequate” to punish the conduct in this matter. (Id. ) Despite these sympathetic comments, there is nothing in the recor d to indicate the district court was unhappy with the guideline sentence or that it would have been inclined to impose a lower sentence, even had it realized it ha d the discretion to do so. See United States v. Sierra-Castillo , 405 F.3d 932, 942 (10th Cir. 2005) (finding that comments of sympathy towards a defendant’s circumst ances do not in themselves demonstrate that “the sentence implicates the kind of fundamental fairness issues necessary to satisfy the fourth plain-error prong”) ; Trujillo-Terrazaz , 405 F.3d at 821 (“Even if a defendant can demonstrate that the district court felt particular sympathy for him, and might impose a lesser sentenc e on remand, failing to-12-

correct [non-constitutional Bookererror] would not impugn the fairness, integrity, and public reputation of judicial proceedings. Ind eed, a remand might do quite the opposite because another defendant convicted of an identical crime under identical circumstances could receive a different s entence from a less sympathetic judge.”). While it is true that district courts now have more discretion to tailor sentences to the “history and characteristics of th e defendant” under 18 U.S.C. § 3553(a)(1), including possibly a defendant’s strugg le with substance abuse, § 3553(a)(2)(D) also requires a district court to con sider the need for the sentence imposed “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in th e most effective manner.” Here, the district court “strongly” recommended as part o f Mata’s sentence that she be placed in a facility where she can participate in t he BOP’s Residential Drug Abuse Treatment Program, in an apparent attempt to treat her substance abuse. (Id. at 14.) Therefore, the district court adequately considered and addressed Mata’s substance abuse; there is no indication the court would rely on her substance abuse to craft a lower sentence on remand

. Based on the above, Mata fails to satisfy the fourt h prong of plain error review; thus, we decline to exercise our discretion to correct the error.-13- III. Conclusion The judgment of the district court is AFFIRMED

.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge