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

### September 30, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RANDY TODD WILSON, Defendant-Appellant. No. 03-6225 (W.D. Okla.) (D.Ct. No. 03-CR-80-F)

ORDER ON REMAND FROM THE SUPREME COURT

OF THE UNITED STATES

Before TACHA , Chief Circuit Judge, andPORFILIO and BRORBY , Senior Circuit Judges.

Appellant Randy Todd Wilson pled guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). See United States v. Wilson, 95 Fed. Appx. 970, 971 (10th Cir. Apr. 27, 2004) (unpublish ed op.) ( Wilson I ), vacated and remanded, 125 S. Ct. 1029 (2005) ( Wilson II ). The district court sentenced him to 188 months imprisonment after determining th ree prior burglary convictions supported an Armed Career Criminal Act enhancement under both 18 U.S.C. § 924(e) and United States Sentencing Commis sion, Guidelines Manual (U.S.S.G.) § 4B1.4(a), and finding Mr. Wilson’s use of a firearm during a crime-2-

of violence sufficient to warrant an additional one -level enhancement under § 4B1.4(b)(3)(A). Wilson I at 971, 973.

Mr. Wilson appealed his sentence, contesting the co nvictions supporting the Armed Career Criminal Act enhancement and the addit ional enhancement for use of a firearm during a crime of violence. Id. On April 27, 2004, we affirmed his conviction and sentence. Id. at 971, 977. Thereafter, Mr. Wilson appealed to t he United States Supreme Court. During the pendency o f his appeal, the Supreme Court decided Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004). On July 26, 2004, in apparently another writ of certio rari submitted to the Supreme Court, Mr. Wilson again raised his objection to the enhancement for use of the firearm during a crime of violence to the Supreme C ourt, “this time invoking Blakely, and violation of his Fifth and Sixth Amendment rig hts.” Following the issuance of Blakely , and during the pendency of Mr. Wilson’s appeal, t he Supreme Court decided United States v. Booker , 543 U.S. ____, 125 S. Ct. 738 (2005), and thereafter summarily vacated and remand ed our decision in Mr. Wilson’s case for further consideration in light of Booker

. See Wilson II, 125 S. Ct. at 1029. At our direction, the parties filed s upplemental briefs on the applicability of Bookerand whether Mr. Wilson raised a Booker -type objection before the district court for the purpose of review ing his appeal on remand for-3-

either harmless or plain error. On remand, Mr. Wil son appeals only the enhancement for use of a firearm during a crime of violence, and not the Armed Career Criminal Act enhancement which was based on his prior convictions. Thus, we do not address the latter, noting only that under United States v. Moore , 401 F.3d 1220 (10th Cir. 2005), the government is n ot required to charge in an indictment or prove to a jury either: 1) the exist ence of prior convictions; or 2) their classification as “violent felonies.” Id. at 1221, 1224-25 & n.2. As to the enhancement which Mr. Wilson now raises in this app eal as well as an issue he raises with respect to the mandatory application of the Sentencing Guidelines, we reinstate our previous Order and Judgment and affirm for the following reasons.

I. Factual Background We first briefly recite those facts relevant for th e purpose of disposing of the Bookerissues now raised on appeal. On March 15, 2003, O klahoma City police officers responded to a reported disturbance at Mr. Wilson’s ex-wife’s home. Wilson I, 95 Fed. Appx. at 971. Her boyfriend, David Hanso n, told the officers Mr. Wilson pointed a firearm at him and th en fled. Id. He described the firearm as a small chrome and black semi-automatic handgun. Id. Two days later, officers went to Mr. Wilson’s listed residen ce, where he directed them to a floor safe containing a Smith & Wesson .40 caliber chrome and black semi--4-

automatic pistol loaded with several rounds of ammu nition. Id. at 972. Mr. Wilson was arrested and charged with being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g). Id. During a subsequent police interview, Mr. Wilson admitted he got into an altercation with Mr. Hanson and told Mr. Hanson he had a gun he would use unless he stopped messing with him. Id. However, he denied having the gun with him during the altercati on. Id.

After Mr. Wilson pled guilty to being a felon in po ssession of a firearm pursuant to 18 U.S.C. § 922(g)(1), the probation of ficer prepared a presentence report recommending a one-level enhancement under U .S.S.G. § 4B1.4(b)(3)(A) because he possessed the firearm in connection with a crime of violence when he threatened Mr. Hanson with the gun. Id. Applying various other sentencing factors, the probation officer calculated Mr. Wilso n’s total offense level at 31 and his criminal history category at VI, for a final Gu idelines range of 188 to 235 months imprisonment. Id. Through counsel, Mr. Wilson generally objected to the enhancement but did not state any specific objectio ns or object to any of the facts in the presentence report which supported the enhan cement, other than to state that “[c]ounsel is unaware of any alleged facts in support of this allegation.” Id. At sentencing, counsel for Mr. Wilson again general ly objected to the enhancement, but when asked if the objection was fa ctual and whether Mr.1 As explained in our prior opinion, we did not con sider the other evidence

the district court considered, which consisted of apolice telephone interview and statement of another witness who was at the scene o f the incident and stated Mr. Wilson pointed the gun at Mr. Hanson’s head. See Wilson I, 95 Fed. Appx. at 976. -5- Wilson denied pointing the gun at Mr. Hanson, couns el responded that “the burden of proof is on the Government to prove that. ” Id. Through witness testimony, the government offered into the record M r. Hanson’s statement Mr. Wilson pointed the gun at him, to which Mr. Wilson’ s counsel did not object, stating she believed it was admissible hearsay evid ence. Id. at 971, 973.

Based on this and other evidence, 1 the district court found the one-level enhancement applied. Id. at 973. The district court then applied the botto m of the sentencing range, for a sentence of 188 months imprisonment. Id. In discussing the § 4B1.4(b)(3)(A) enhancement at issu e here, the district court stated: The Court has no trouble concluding that this is a case, again, given the defendant’s breathtakingly long record of serious criminal conduct, the Court has no trouble concluding that t his case falls squarely with the intent of the provisions which pr ovide for a very substantial enhancement of the term of incarceratio n in cases like this one, with individuals who have a record like the de fendant’s record.

.... There are no matters with respect to departure pend ing before the Court and the Court does not intend to depart on it s own motion. In imposing the sentence, the district court stated it sentenced Mr. Wilson:-6-

at the bottom of the guideline range for the reason that it is the Court’s conclusion that even though enhancement is certainly welljustified in this case, the enhancement and the res ulting offense level of 31, 188 months is a sufficient term of incarceration to serve the statutory purposes of sentencing.
On initial appeal we determined, in part, that the reliability of Mr. Hanson’s statement Mr. Wilson pointed a gun at him was suppo rted by the fact his description of the gun matched the characteristics of the gun actually found in Mr. Wilson’s possession only two days later. Id. at 972, 976-77. After determining the district court did not err in applying the § 4B 1.4(b)(3)(A) enhancement, we affirmed Mr. Wilson’s conviction and sentence. Id. at 977.

II. Discussion On remand, Mr. Wilson appeals the § 4B1.4(b)(3)(A) enhancement for use of a firearm during a crime of violence, asserting the intervening decisions in Blakely and Bookerrequire the facts supporting the enhancement to be found by a jury and not a judge. While the government agrees the district court committed an error in making a factual determination in suppo rt of the enhancement, it argues the error must be reviewed for plain error, rather than harmless error, given Mr. Wilson only raised a nonspecific factual objection to the enhancement before the district court and not a Booker -type constitutional objection.-7-

As the government admits, Mr. Wilson presents a Sixth Amendment constitutional error based on judicially-found fact s because the district court, rather than a jury, found the facts supporting the § 4B1.4(b)(3)(A) enhancement for use of a firearm during a crime of violence. See United States v. GonzalezHuerta , 403 F.3d 727, 731 (10th Cir. 2005). However, bec ause Mr. Wilson only generally challenged the enhancement before the dis trict court, and did not challenge his enhancement on Booker -type constitutional grounds, we review it for plain error. See United States v. Ambort , 405 F.3d 1109, 1118 (10th Cir. 2005).

“Plain error occurs when there is (1) error, (2) th at is plain, which (3) affects substantial rights, and which (4) seriouslyaffects the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta , 403 F.3d at 732. Applying Booker , the first two factors in our plain error analysis are easily resolved because the district court clearly committ ed an error when it determined the facts supporting the enhancement, and the erroris plain. Id.

In determining the third factor on whether the erro r affected substantial rights, the burden is on Mr. Wilson to show the err or is prejudicial, i.e ., the error “‘must have affected the outcome of the district co urt proceedings.’” Ambort ,-8-

405 F.3d at 1118 (quoting United States v. Olano , 507 U.S. 725, 734 (1993)). In meeting this burden, he must show “‘a reasonable pr obability that, but for the error claimed, the result of the proceeding would h ave been different.’” Id. (quotation marks and citations omitted).

This circuit has announced at least two ways a defe ndant can meet this burden, by either: 1) showing a reasonable probabi lity a jury applying a reasonable doubt standard would not have found the same material facts a judge found by a preponderance of the evidence; or 2) dem onstrating a reasonable probability that, under the specific facts of the c ase as analyzed under the sentencing factors in 18 U.S.C. § 3553(a), the dist rict court would reasonably impose a sentence outside the Guidelines range. See United States v. Dazey , 403 F.3d 1147, 1175 (10th Cir. 2005). Under the first scenario, the court reviews “the evidence submitted at the sentencing hearing and th e factual basis for any objection” by the defendant. Id.

In this case, Mr. Wilson fails to meet his burden u nder either scenario. With respect to the first scenario, the government submitted the statement of Mr. Hanson, to which Mr. Wilson did not object, establi shing Mr. Wilson used the gun during a crime of violence when he pointed it at him. While Mr. Wilson told2 As previously noted, Mr. Wilson’s counsel did notobject to the

government’s submission of Mr. Hanson’s statement i nto evidence at the sentencing hearing, stating she believed it was adm issible hearsay evidence. See Wilson I, 95 Fed. Appx. at 973. On remand, Mr. Wilson asse rts in the postBookerera the introduction of the police report containi ng Mr. Hanson’s statement would be inadmissible hearsay for conside ration by a jury for the purpose of imposing an enhancement and, furthermore , that he did not have an opportunity to confront and cross-examine Mr. Hanso n at the sentencing hearing. Following Booker , we have acknowledged sentencing courts may consid er hearsay evidence if it has sufficient indicia of reliability, while juries may not consider this type of evidence. Dazey , 403 F.3d at 1177 n.7. We have also determined th e use of hearsay evidence itself does not violate a d efendant’s substantial rights, so that a defendant still has the burden to show the S ixth Amendment error affected his substantial rights. Id. Having recognized the district court in this case erred in making the factual determinations for the enhanc ement, it is Mr. Wilson’s burden to show the error is prejudicial, i.e ., the error “must have affected the outcome of the district court proceedings,” and the re is “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Ambort , 405 F.3d at 1118 (quotation marks and citations o mitted). Mr. Wilson has failed to explain how the result wou ld differ if the jury had (continued...) -9- police officers he did not have the gun with him atthe time of the altercation, thereafter, he did not raise this contention before the district court or otherwise offer contrary evidence, other than to state “[c]ou nsel is unaware of any alleged facts in support of this allegation” and that “the burden of proof is on the Government to prove that.” Wilson I, 95 Fed. Appx. at 972. Based on the evidence submitted by the government and lack of any rebuttal evidence during the district court proceeding, Mr. Wilson fails to show a reasonable probability a jury evaluating the same evidence under a reasonabl e doubt standard would not have found the same material facts as found by the district court. 2 Accordingly,2 (...continued)

reviewed the same evidence as the district court orif Mr. Hanson testified and Mr. Wilson was afforded an opportunity to confront and cross-examine him with respect to his incriminating statements. His curso ry argument “the defects in his sentencing altered the result of the proceeding” an d that “[a] jury would not have found Mr. Wilson guilty beyond a reasonable doubt o f possessing a firearm in connection with a violent offense based on a police report,” without more, is inadequate to meet his burden. -10- he fails under the first scenario to establish his substantial rights were violated by the district court’s enhancement of his offense lev el.

With respect to the second scenario, we determine w hether Mr. Wilson has demonstrated a reasonable probability that, under t he specific facts of his case as analyzed under the sentencing factors in 18 U.S.C. § 3553(a), the district court would reasonably impose a sentence outside the Guid elines range. See Dazey , 403 F.3d at 1175 & n.5. In so doing, we recognize the Supreme Court in Booker held the Guidelines are now only advisory. 543 U.S . at ___, 125 S. Ct. at 768-69. Thus, we determine whether there is a “‘reasonable probability that if the district judge had not thought himself bound by the mandatory Guidelines to sentence in accordance with ... judge-found, preponderance-of-t he-evidence facts,’” he might have determined a lower sentence should be imposed. See Ambort , 405 F.3d at 1120 (quoting Dazey, 403 F.3d at 1177). In Dazey , we explained a defendant might make such a showing “if during sentencing the district court expressed its-11-

view that the defendant’s conduct, based on the rec ord, did not warrant the minimum Guidelines sentence.” 403 F.3d at 1175.

In this case, nothing in the record indicates the d istrict court would not impose the contested enhancement under an advisory, rather than a mandatory, sentencing scheme or that it preferred to give Mr. Wilson a sentence lower than within the Guidelines range. Instead, it explained it sentenced Mr. Wilson at the bottom of the Guidelines range “for the reason thatit is the Court’s conclusion that even though enhancement is certainly well-just ified in this case, with the enhancement and the resulting offense level of 31, 188 months is a sufficient term of incarceration to serve the statutory purposes of sentencing.” The district court also opined it had no trouble concluding Mr. Wilson ’s case fell squarely within “the intent of the provisions which provide for a v ery substantial enhancement,” given his “breathtakingly long record of serious cr iminal conduct.” Finally, the district court concluded it would not depart on its own motion. We consider a district court’s refusal to grant a discretionary d ownward departure a further indication of its satisfaction with a defendant’s s entence. See United States v.
Lawrence , 405 F.3d 888, 908 (10th Cir.), petition for cert. filed, (Aug. 30, 2005) (No. 05-6306). Under these circumstances, Mr. Wils on has failed to establish a reasonable probability the district court would hav e imposed a lower sentence if it-12-

had not been under pre- Bookermandatory constraints. Because Mr. Wilson fails to meet his burden with respect to the third prong, it is unnecessary for us to address the last prong, given all four prongs must be met for successful plain error resolution.

III. Conclusion For the reasons set forth above, we REINSTATE our previous Order and Judgment and AFFIRM Mr. Wilson’s sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge