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The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-2459

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Luke Keller, *

*

Appellant. *

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Submitted: May 9, 2005

Filed: July 5, 2005

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Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.

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WOLLMAN, Circuit Judge.

Luke Keller appeals from the sentence imposed upon him by the district court1

following his guilty plea for engaging in a continuing criminal enterprise (Count 2),

a violation of 21 U.S.C. § 848, and using a firearm in a crime of violence and drug

trafficking crime (Count 5), a violation of 18 U.S.C. §§ 2 and 924(c). We affirm.
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I.

Between October 2000 and June 2002, Keller and several associates engaged

in a drug conspiracy in Minnesota and Iowa in which they distributed more than

27,600 grams of a mixture containing methamphetamine, 5,800 grams of “ice”

methamphetamine, 20,000 grams of cocaine, 200 grams of ecstacy, and 1,000

kilograms of marijuana. The marijuana equivalent of the combined drug quantity

exceeded 177,000 kilograms. Keller received between $20,000 and $30,000 per

month from his involvement in the drug ring. 

At some point in the conspiracy, Keller and his associates kidnapped at

gunpoint Patrick Carlone, one of Keller’s drug dealers who owed him money. After

taking Carlone to Keller’s basement, which was covered with tarps, Keller struck

Carlone in the forehead with a gun, causing him to bleed. Keller’s associates then

kicked Carlone. After the beating, two of Keller’s associates wearing rubber gloves

cleaned the carpet with a wet-dry vacuum. 

In May 2002, Greg Molitor, Jess Ballhagen, and Chris Witter stole a substantial

quantity of cash and drugs from Keller’s stash house. Keller initially suspected Brian

Anderson of the theft. According to the presentence investigation report (PSR),

Keller, aware that Anderson was coming to his house, spread a tarp over his basement

floor to protect the floor from blood. When Anderson arrived, Keller took him to the

basement, where Keller and two associates beat him. After concluding that Anderson

was not involved in the theft, Keller shifted his suspicions to Witter. Keller brought

handguns from Minnesota to Iowa and provided them to his associates, who

kidnapped Witter at gunpoint. A witness observed the abduction and contacted

police, who apprehended Keller’s associates before they harmed Witter. 

Keller pled guilty to Counts 2 and 5 pursuant to a plea agreement, whereupon

the district court sentenced him to 437 months’ imprisonment.
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II.

Keller asserts for the first time on appeal that the government breached the plea

agreement by introducing Keller’s proffer at sentencing. We review de novo issues

pertaining to the interpretation and enforcement of a plea agreement. United States

v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004). 

Keller’s breach argument relates to the base offense level on Count 2. Under

the terms of the plea agreement, Keller’s “base offense level [was] 38 pursuant to

USSG § 2D1.5(a)(2).” Plea Agreement at 7. The prosecutor at no time argued to the

contrary. In fact, when asked about the base offense level by the district court, the

prosecutor responded that “with regard to the base offense level, we’re bound by our

plea agreement.” Sen. Tr. at 165. The prosecutor noted that although the plea

agreement was not binding on the district court, “it is binding on us, so I have nothing

to add to [the issue of the base offense level].” Id.

Prior to imposing sentence, the district court emphasized that, unlike the

prosecutor, it was not bound by the stipulation to the base offense level of thirtyeight. Id. at 13. The district court concluded that:

The base offense level involved a minimum of 177,278.39 kilograms of

marijuana equivalent drugs. Under 2D1.5(a)(1), the base offense level

is computed by adding four levels, plus the offense level from 2D1.1,

and, therefore, applying the guideline, the base offense level is then

forty-[two]. 

Id. at 184-85. Keller ignores the prosecutor’s and the district court’s statements and

focuses instead on the prosecutor’s introduction into evidence of Keller’s proffer

statement. Keller infers that the prosecutor must have offered the statement to
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The district court, in fact, could have arrived at a base offense level of 42

independent of the proffer statement. See infra, note 3.

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Keller also alleges that the district court calculated the base offense level on

Count 2 using a preponderance of the evidence standard. Keller Br. at 7-8. Keller,

however, stipulated in his plea agreement that he and his co-conspirators distributed

more than five kilograms of ice methamphetamine, which results in an offense level

of 38 under section 2D1.1(c)(1) of the guidelines. The district court increased the

base offense level to 42 pursuant to section 2D1.5(a)(1). Accordingly, the district

court’s calculation of the base offense level did not involve factual findings.

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support a base level offense of 42 in contravention of the plea agreement. The record

is devoid of any evidence supporting Keller’s inference.2

III.

Keller challenges on appeal four sentencing enhancements based on facts not

found by a jury beyond a reasonable doubt. Three of these enhancements apply to his

sentence on the Count 2 conviction: a two-level increase for restraint of a victim

during the offense, a two-level increase for obstruction of justice, and a two-level

increase for sanctioning the use of violence.3

 The fourth challenged enhancement is

the district court’s 24-month increase to the mandatory minimum under 18 U.S.C. §

924(c) on the Count 5 conviction based on its finding that Keller brandished (rather

than simply possessed) a firearm. Although the district court used the preponderance

of the evidence standard to determine each of the four enhancements to which Keller

objects, those enhancements are not necessarily constitutionally infirm under United

States v. Booker, 125 S. Ct. 738 (2005). 

A.

We have recently held that a fact in a PSR not specifically objected to is a fact

admitted by the defendant for purposes of Booker. See United States v. McCully, 407

F.3d 931, 933 (8th Cir. 2005). Further, sentencing enhancements can be supported

by admitted acts and omissions that were “. . . committed, aided, abetted, counseled,
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commanded, induced, procured, or willfully caused,” and include “reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity.” U.S.S.G. § 1B1.3(a)(1). 

The district court based its enhancement for restraint of a victim on section

3A1.3 of the guidelines, which provides that “[i]f a victim was physically restrained

in the course of the offense, increase by 2 levels.” Physical restraint means “the

forcible restraint of the victim such as by being tied, bound, or locked up.” Id. at

§1B1.1, commentary application notes at ¶1(K). The PSR indicates that two of

Keller’s associates tied up Carlone after Keller beat him, that Carlone was tied to “a

lawn chair with zip ties to the lawn chair cutting off circulation to [his] legs,” and that

Carlone was locked in a closet and tied up for three to four days. PSR at ¶¶76, 77, 78.

Keller’s sole objections to these statements are that he “was not involved in” the lawn

chair restraint and that he “never locked [Carlone] in a closet.” Objections to PSR at

3. Keller, however, does not dispute that any of these acts took place, and he does not

deny knowledge of the acts, which were clearly related to his criminal enterprise. We

conclude that the facts in the PSR, which are admitted for Booker purposes, justify

the district court’s enhancement for restraint of a victim.

The district court premised its enhancement for sanctioning violence on section

2D1.5, note 2, which provides that “[i]f as part of the [continuing criminal] enterprise

the defendant sanctioned the use of violence . . . an upward departure may be

warranted.” The PSR indicates that Keller punched and kicked Anderson and that he

hit Carlone in the head with a gun. PSR at ¶¶64, 76. These facts, which Keller does

not contest, support the district court’s enhancement based upon Keller’s sanctioning

of violence. 

B.

The district court increased Keller’s sentence on Count 5 based on its finding

that Keller brandished a firearm in a crime of violence and drug trafficking crime.
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The district court made “. . . the specific finding by the preponderance of the

evidence that [Keller’s associates] brandished firearms during the abduction of

Witter” and that “[t]he Witter kidnapping was part and parcel of drug activity and

continuing criminal enterprise.” Sen. Tr. at 189. The district court also found that

Keller could be “held responsible for brandishing weapons under several theories.”

Id. at 188. The undisputed fact that Keller struck Carlone with a firearm provides

separate justification for the district court’s finding. See 18 U.S.C. § 924(c) (defining

brandish as “with respect to a firearm, to display all or part of the firearm, or

otherwise make the presence of the firearm known to another person, in order to

intimidate that person, regardless of whether the firearm is directly visible to that

person”).

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See 18 U.S.C. § 924(c).4

 The Supreme Court has concluded that such a judicial

finding does not implicate constitutional concerns: 

Basing a 2-year increase in the defendant’s minimum sentence on a

judicial finding of brandishing does not evade the requirements of the

Fifth and Sixth Amendments. Congress simply took one factor that has

always been considered by sentencing courts to bear on punishment and

dictated the precise weight to be given that factor. That factor need not

be alleged in the indictment, submitted to the jury, or proved beyond a

reasonable doubt.

Harris v. United States, 536 U.S. 545, 568 (2002) (internal quotes and citation

omitted). Accordingly, Keller’s challenge to this aspect of his sentence is unavailing.

C. 

The enhancement for obstruction of justice is not supported by undisputed

statements in the PSR. See Objection to PSR at 3 (“Defendant objects to any

inference that he obstructed justice.”). Accordingly, we address Keller’s objection

to this enhancement in light of Booker and United States v. Pirani, 406 F.3d 543 (8th

Cir. 2005) (en banc). Because Keller did not raise a constitutional challenge to the

enhancement at sentencing, we conduct plain error review under the four-part test of
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United States v. Olano, 507 U.S. 725 (1993). Pirani, 406 F.3d at 549. Pursuant to

that test, before we can correct an error not raised at trial, “there must be (1) error, (2)

that is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S.

461, 466-67 (1997). If all three conditions are met, we may remedy the error only if

it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. 

The enhancement for obstruction of justice was erroneous in light of Booker

because it was imposed on the basis of judge-found facts in a mandatory guidelines

regime. See Pirani, 406 F.3d at 551. In these circumstances, the first two Olano

factors are satisfied. See id. at 550. Whether the error affected Keller’s substantial

rights is another matter. To satisfy this factor, “the defendant must show a

‘reasonable probability,’ based on the appellate record as a whole, that but for the

error he would have received a more favorable sentence.” Id. at 552.

In calculating Keller’s offense level on Count 2, the district court began with

a base offense level of 42, subtracted three levels for acceptance of responsibility, and

added two levels each for victim restraint, sanctioning violence, and obstruction of

justice. Although these adjustments resulted in an offense level of 45, the district

court sentenced Keller at an offense level of 43, the maximum level under the

guidelines. Removing the two-level enhancement for obstruction of justice merely

reduces Keller’s offense level from 45 to 43, the same level at which he was

sentenced. Accordingly, Keller is unable to demonstrate that he was prejudiced by

the enhancement for obstruction of justice.

We also note that nothing in the record suggests that the district court would

have sentenced Keller to a lighter sentence had it been operating under an advisory

guidelines regime. To the contrary, the district court opined that:
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The 470-month figure is taken from the 2001 Sourcebook of Federal

Sentencing Statistics, United States Sentencing Commission, Appendix A (“Life

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This is the most violent drug case that I have heard as . . . a Federal

Court judge, and in nine years on the State bench, I never heard of any

conduct like I have heard in this case. It’s very disturbing, whether it

was an isolated incident or an ongoing practice.

Sen. Tr. at 191. The district court also noted that:

In deciding where to sentence the Defendant within the range, I

considered the nature and circumstances of the offense and the history

and characteristics of the Defendant. In addition, the sentence was

imposed to afford adequate deterrence to criminal conduct and protect

the public.

Id. at 212. In light of these comments, Keller has not demonstrated a reasonable

probability of prejudicial error. 

IV.

Keller’s counsel contended at oral argument that the district court erroneously

calculated Keller’s 25% reduction for substantial assistance, which applied only to

Keller’s life sentence on Count 2. The district court considered “the United States

Sentencing Commission number of 39 years as a life sentence in this case,” id. at 210,

and calculated Keller’s sentence on Count 2 to be 353 months. Keller’s counsel

suggests that the 25% reduction should have resulted in a sentence of 351 months

rather than the 353 months calculated by the district court. Although a 25% reduction

of 39 years (468 months) results in a sentence of 351 months, the sentencing

transcript makes clear that the district court’s reference to “39 years” was an

approximation and that its precise starting point was 470 months, not 468 months.

See id. at 208 (“United States Sentencing Commission says 470 months, which would

be 39.16 years.”).5

 A 25% reduction of 470 months results in a sentence of 352.5
sentences are assigned a prison length of 470 months, based on U.S. Census Bureau

average life expectancy by age of federal defendants at sentencing.”). See Sen. Tr.

at 208 and Gov’t Supp. Sen. Mem. at 2.

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months, which the district court rounded upward to 353 months. Neither this

calculation nor its starting point was in error.

The sentence is affirmed.

BRIGHT, Circuit Judge, dissenting

I would send this case back for resentencing, to allow the trial judge to consider

adopting the base offense level of thirty-eight that the parties stipulated to in the plea

agreement. 

The district court was bound by mandatory sentencing guidelines, and the facts

stipulated to in the plea agreement required a base offense level of forty-two. There

was thus a contradiction between the level that the government and Keller agreed

upon and the statutorily mandated level. The court adopted the statutorily mandated

level.

Now that the Supreme Court has held that the guidelines are advisory rather

than mandatory, United States v. Booker, 125 S. Ct. 738 (2005), the district court

would be at liberty to adopt the lower base offense level that the government and

Keller agreed upon. Our ordinary Booker plain error analysis, see United States v.

Pirani, 406 F.3d 543 (8th Cir. 2005), does not apply here. This case – in which the

court was prevented by mandatory guidelines from giving effect to a plea agreement

– is distinguishable from Pirani. 
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The district court should be given the opportunity to give effect to the plea

agreement.

For this reason, I respectfully dissent.

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