* This order and judgment is not binding precedent, e xcept under the

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

### MAY 2 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-2076

v. (D. New Mexico) SAMUEL DUSTIN ELIJAH GAMBLE, Defendant - Appellant. (D.C. No. CR-03-2121-RB)

ORDER AND JUDGMENT *

Before TACHA, Chief Judge, ANDERSON , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Assessment as a career offender mandates a criminal history category of

VI. USSG §4B1.1(b). -2- Samuel Dustin Elijah Gamble pled guilty to possessi on with intent to distribute 100 kilograms or more of marijuana, in v iolation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and aiding and abetting. He appeals the 188-month sentence imposed. We affirm.

BACKGROUND On July 28, 2003, Gamble was stopped for speeding w hile driving a truck in Grant County, New Mexico. A drug-sniffing dog s ubsequently alerted to the truck, a search of which led to the discovery of 24 5.72 kilograms of marijuana. Gamble then admitted he was aware the marijuana was in the truck. After he pled guilty without the benefit of a plea agreement, the probation office determined that Gamble’s total offense level was 31 and that he had a criminal history category of VI. This resulted in a sentencing range of 188 to 235 months under the United States Sentencing Commissio n, Guidelines Manual (“USSG”). As a part of the calculation of his tota l offense level and his criminal history category, the probation office determined t hat Gamble was a career offender under USSG §4B1.1 because he had two previ ous convictions for aggravated felonies. 1-3-

Although conceding that his criminal history catego ry of VI was “technically correct,” Gamble filed a motion for a downward departure, claiming that his criminal history category, based upon his assessment as a career offender, over-represented the seriousness of his prior crimi nal conduct. In particular, he argued that his 1996 conviction in Texas for burgla ry of a habitation was not as serious as it appeared because he was only seventee n at the time, and his conduct involved entering his stepfather’s home and stealin g a coin collection. The government responded that Gamble’s fourteen crimina l history points actually under-represented his criminal history because seve ral misdemeanor convictions were omitted, as were several arrests which had bee n dismissed in exchange for guilty pleas to other charges. Furthermore, becaus e his criminal history points based upon other past criminal conduct placed him i n criminal history category VI, the government argued that the career offender assessment had no practical effect on his criminal history category. At Gamble’s sentencing hearing, the district court denied his motion for a downward departure, adopted the findings and recomm endations of the probation office’s Presentence Report, and sentenced Gamble t o 188 months. He appeals, arguing (1) the district court committed plain erro r when it characterized his prior Texas conviction for burglary of a habitation as a violent crime and therefore sentenced Gamble as a career offender; and (2) his sentence was plain error under2 Blakelywas issued after Gamble was sentenced. When Booke rwas issued,

we directed both parties to file supplemental brief s on the effect of that decision on this case.

3 In the district court, Gamble did not object to his designation as a career offender as such. Rather, he argued that the caree r offender status contributed to the over-representation of the seriousness of his c riminal history. -4- Blakely v. Washington , 124 S. Ct. 2531 (2004), and United States v. Book er , 125 S. Ct. 738 (2005). 2

DISCUSSION I. Career Offender Because he failed to object before the district cou rt to the determination that his Texas conviction for burglary of a habitat ion was a “crime of violence” for purposes of the career offender guideline, USSG §§4B1.1(a), 4B1.2(a)(2), 3 Gamble concedes that our standard of review is plai n error. He also concedes that we have previously rejected the identical argument he now makes. United States v. Spring , 80 F.3d 1450, 1462-63 (10th Cir. 1996) (holding t hat a Texas conviction for burglary of a habitation qualifies a s a “crime of violence” for purposes of USSG §4B1.1’s career offender provision s). He asks us to overrule Spring . We cannot do that, absent en banc review, which we decline to seek. Barber v. T.D. Williamson, Inc. , 254 F.3d 1223, 1229 (10th Cir. 2001) (“[I]t is well established that one panel ‘cannot overrule th e judgment of another panel of4 The Supreme Court’s recent decision in Shepard v. U nited States , 125 S.

Ct. 1254 (2005), does not affect our analysis. -5- this court . . . absent en banc reconsideration or a superseding contrary decision by the Supreme Court.’”) (quoting In re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (per curiam)). In light of Spring , the district court did not err when it sentenced Gamble as a career offender. 4

II. Validity of Sentence under Blakely /Booker Blakelyand Bookerhave established that, for purposes of the Guideli nes, the Sixth Amendment requires that “[a]ny fact (othe r than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable d oubt.” Booker , 125 S. Ct. at
756. See United States v. Gonzalez-Huerta , No. 04-2045, 2005 WL 807008, at *1 (10th Cir. Apr. 8, 2005) (en banc). Bookerfurther held that the Guidelines are advisory, rather than mandatory. The Court’s decis ion applies to all cases on direct review. Booker , 125 S. Ct. at 769. Gamble did not argue to the district court that his sentence was unconstitutional or otherwise infirm. On appeal, h e argues that Blakelyand Bookernecessitate a remand for resentencing “consider[in g] the Guidelines and5 Other than asking us to overturn our prior caselaw holding that a Texas

conviction for burglary of a habitation qualifies a s a “crime of violence” for career offender purposes, Gamble does not seriously challenge the validity of his career offender enhancement after Blakely and Booker . The career offender provisions rely upon the existence of prior convict ions. We have consistently held that the rule of Apprendi and Blakelydoes not apply to sentencing determinations based upon prior convictions. Booke ritself repeated that rule, and the Supreme Court’s most recent decision on the use of prior convictions in sentencing, Shepard v. United States , 125 S. Ct. 1254 (2005), did not overturn the rule. Indeed, we have recently explicitly held that “Booker. . . and Shepard

. . . do not require the government to charge in an indic tment or prove to a jury either the existence of prior convictions or their classif ication as ‘violent felonies.’” United States v. Moore , 401 F.3d 1220, 1221 (10th Cir. 2005); see also United States v. Cooper , 375 F.3d 1041, 1052 n.3 (10th Cir.) (noting that “the facts that increase the penalty beyond the statutory maximum a re facts of prior conviction, for which Apprendi makes specific exception”), cert. denied , 125 S. Ct. 634 (2004). -6- related police statements with the other factors li sted in Section 3553(a).” Appellant’s Supplemental Br. at 3. In particular, because he had argued prior to sentencing that the career offender designation ove r-represented his criminal history, “[t]he district court should have the oppo rtunity to fully consider the actual circumstances of Gamble’s prior convictions in determining whether a 188- month sentence was warranted for this young man who se prior convictions were relatively less serious and occurred when he was a juvenile.” Id. 5 Except for his challenge to the use of his prior co nviction to determine that he is a career offender, Gamble does not argue thathis sentence was enhanced based upon any other judicial factual determination s, in violation of the Sixth Amendment. He simply argues that his sentence is u nlawful because it was-7-

imposed by a court operating under the view that th e Guidelines were mandatory, when in fact, as Bookernow tells us, they were only advisory. Gamble thu s raises a non-constitutional Bookererror. See Gonzalez-Huerta , 2005 WL 807008, at *2 (discussing difference between Bookerconstitutional error and Bookernonconstitutional error). Because Gamble failed to ra ise this issue before the district court, we review it for plain error. Gonzalez-Huerta , id. at *3; cf. Booker , 125 S. Ct. at 769 (“[W]e expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was rai sed below and whether it fails the ‘plain-error’ test.”). “Plain error occurs when there is (1) error, (2) th at is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Gonzal ez-Huerta , 2005 WL 807008, at *3 (further quotation omitted). As Bookermakes clear, the district court’s mandatory application of the Guidelines was plain e rror, thereby satisfying the first two prongs of plain-error review. See Gonzalez-Huerta , 2005 WL 807008, at *3. We consider, therefore, whether Gamble has sat isfied the third and/or fourth prongs of plain-error review. The third prong of plain-error review, requiring th e defendant to establish that the error affected his substantial rights, “us ually means that the error must have affected the outcome of the district court pro ceedings.” United States v.-8-

Cotton , 535 U.S. 625, 632 (2002) (quotations omitted); se e also United States v. Olano , 507 U.S. 725, 734 (1993). Gamble bears the burde n of making this showing. Gonzalez-Huerta , 2005 WL 807008, at *3. To meet this burden, Gamble must show “‘a reasonable probability that, b ut for the error claimed, the result of the proceeding would have been different. ’” Id. (quoting United States v. Dominguez Benitez , 124 S. Ct. 2333, 2339 (2004)). We have recently held that, “[a]pplying the sentenc ing factors listed in § 3553(a) to [defendant’s] case provides a strong i ndication that had the district court applied the Bookerframework, his sentence would have been lower and this lower sentence would be reasonable.” United States v. Trujillo-Terrazas , No. 04-2075, 2005 WL 880896, at *3 (10th Cir. Apr. 13, 2005); see also United States v. Dazey , Nos. 03-6187, 03-6205, 03-6208, 03-6228, 2005 WL 846227, at *20 & n.2 (10th Cir. Apr. 13, 2005) (noting that a non-co nstitutional Bookererror may affect substantial rights if the defendant shows “areasonable probability that, 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”) (footnote omitted). In Trujillo , we held that the “relatively trivial nature of [defendant’s] crimina l history is at odds with the substantial 16-level enhancement recommended by the Guidelines for this conduct.” Trujillo , 2005 WL 880896, at *3. The “trivial” criminal hi story in-9-

Trujillo refers to a substantial (16-level) enhancement fora single prior conviction for arson, where the defendant tossed a lighted match through a car window, causing $35 in damage. Moreover, the distr ict court in Trujillo “expressed dissatisfaction with the mandatory chara cter of the Guidelines.” Id. at *4. Thus, in Trujillo , there was both a “disconnect between the newly re levant § 3553(a) factors and the sentence given,” id. at *3, and there was an expression of dissatisfaction with the mandatory Guideline str ucture. Id. at **3-4; see United States v. Clifton , No. 04-2046, 2005 WL 941581, at *6 (10th Cir. Apr . 25, 2005) (“[A] defendant can show a non-constitutional Bookererror affected substantial rights with evidence of (1) a disconnec t between the § 3553(a) factors and his sentence, and (2) the district court’s expr essed dissatisfaction with the mandatory Guidelines sentence in his case.”). By contrast, in this case, Gamble’s criminal history was far from trivial, with eight prior convictions, seven of which added points to his criminal history. While Gamble focuses on the allegedly trivial natur e of one of his prior offenses, a felony burglary of a habitation offense, his nume rous other offenses place him firmly in a very high criminal history category, ev en were we to conclude, which we have not, that he did not deserve to be treated as a career offender because of the prior burglary conviction.6 We note that, in Gonzalez-Huerta , we stated that we need not address the

third prong of plain-error review if we conclude th at the defendant could not satisfy the fourth prong by demonstrating that the district court’s error seriously affected the fairness, integrity, or public reputat ion of judicial proceedings. Gonzalez-Huerta , 2005 WL 807008, at *6; see also United States v. Lawrence , No. 02-1259, 2005 WL 906582, at *12 (10th Cir. Apr. 20, 2005). However, we see no reason not to resolve a case on the ground t hat the defendant failed to show that his substantial rights were affected, if the record makes it clear, as in this case, that the defendant has failed to meet hi s burden to show such an effect. -10- Furthermore, the district court did not express dis satisfaction with the Guidelines; at best, the court noted that, due to G amble’s youth and history of drug-related conduct, he had placed himself in a ve ry unfortunate situation, but that the court hoped incarceration would provide a “lifeboat” to Gamble, so that he could: in a structured, safe, environment, where, hopefull y, it’s drug-free, . . . grow. You can get through the emotional prob lems that have resulted in bringing you here, the physical problem s, and learn a trade, do all of those things, so that when this ti me has been spent, you’ll still be alive, you’ll be healthy, and you’l l be ready to hit the ground running. Tr. of Sentencing Proceedings at 7, R. Vol. III. A lthough the district court sentenced Gamble at the low end of the suggested Gu ideline range, Gamble points to nothing else in the record suggesting a reasonab le probability that the district court, in a post-Bookerdiscretionary sentencing world, would have sentenc ed him any differently. He has therefore failed to meet t he third prong for plain-error review. We need not proceed to the final prong of plain-error review. 6-11- CONCLUSION For the foregoing reasons, we AFFIRM Gamble’s sente nce. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge