*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 23, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WILLIAM SHERMAN RAY,

Defendant - Appellant.

No. 02-5213

(D. Ct. No. 00-CR-126-C)

(D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, Chief Circuit Judge, EBEL, and HARTZ, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Defendant William Sherman Ray was convicted of conspiring to possess with

intent to distribute controlled substances in violation of 18 U.S.C. § 846, conspiring to

launder money in violation of 18 U.S.C. § 1956(h), and possession with intent to
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distribute more than fifty kilograms of a substance containing marijuana in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C). After making numerous findings of fact, the District

Court sentenced him to concurrent sentences of 240 months’ imprisonment for the money

laundering conspiracy charge and 280 months’ imprisonment for the drug conspiracy and

possession charges. We affirmed Mr. Ray’s conviction and sentence. See United States

v. Ray, 370 F.3d 1039 (10th Cir. 2004) (“Ray I”). Subsequently, the Supreme Court

summarily reversed and remanded our decision in light of United States v. Booker, 543

U.S. —, 125 S. Ct. 738 (2005). See Ray v. United States, — U.S. —, 125 S. Ct. 995 (Jan.

24, 2005). We then ordered the parties to file supplemental briefs on the issue, and upon

reconsideration, we AFFIRM Mr. Ray’s sentence and REINSTATE all non-sentencing

portions of our previous opinion.

I. DISCUSSION

A.

In Booker, the Court “reaffirm[ed its] holding in Apprendi: Any fact (other 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 doubt.” Booker, 125 S. Ct. at

756. “As a result, the Court held that mandatory application of the Guidelines violates the

Sixth Amendment when judge-found facts, other than those of prior convictions, are

employed to enhance a sentence.” United States v. Gonzalez-Huerta, 403 F.3d 727, 731
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(10th Cir. 2005) (en banc). To remedy this error, the Court “severed two provisions of

the Sentencing Reform Act of 1984, . . . [n]amely, . . . 18 U.S.C. § 3553(b)(1), which

made the imposition of a Guidelines sentence mandatory in the vast majority of cases, and

those portions of 18 U.S.C. § 3742(e) that established standards of review on appeal.” Id. 

“Henceforth, courts are still required to consider the Guidelines in determining sentences,

but they are not required to impose a sentence within the Guidelines range.” Id.

We recognize two types of Booker-related error. “First, a court could err by

relying upon judge-found facts, other than those of prior convictions, to enhance a

defendant’s sentence mandatorily.” Id. We refer to this type of error, which violates the

Sixth Amendment as described in Booker, as “constitutional Booker error.” Id. “Second,

a sentencing court could err by applying the Guidelines in a mandatory fashion, as

opposed to a discretionary fashion, even though the resulting sentence was calculated

solely upon facts that were admitted by the defendant, found by the jury, or based upon

the fact of a prior conviction.” Id. at 731–32. We refer to this type of error as “nonconstitutional Booker error.” Id. at 732.

In the present case, the jury found that the amount of cocaine involved in the

conspiracy was five kilograms or more, and the amount of marijuana involved in the

conspiracy was 1,000 kilograms or more. The District Court grouped the charges of

conspiring to possess with intent to distribute and possession with intent to distribute, and

considered them as a single unit according to U.S. Sentencing Guidelines Manual
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§ 3D1.2(d) (“U.S.S.G.”). Based on these findings and his criminal history category of III,

Mr. Ray’s offense level would have been a 32, see U.S.S.G. § 2D1.1(c), and he would

have been subject to a sentencing range of 151–188 months, see U.S.S.G. Ch. 5, Pt. A. 

Subsequently, however, the District Court applied a two-level enhancement based on its

determination that Mr. Ray possessed a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1),

and a three-level enhancement based on its determination that Mr. Ray played a

supervisory role in the crime, see U.S.S.G. § 3B1.1(b). With these enhancements, his

offense level was calculated at 37 and the Guidelines produced a sentencing range of

262–327 months. See U.S.S.G. Ch. 5 Pt. A. The District Court sentenced him to 280

months. Because judge-found facts regarding the dangerous weapon and supervisory role

were used to increase Mr. Ray’s sentence mandatorily, we face constitutional 

Booker error.

B.

Before we determine whether Mr. Ray is entitled to resentencing, we must first

address whether the Booker error issue was preserved below. Compare Fed. R. Crim. P.

52(a) with Fed. R. Crim. P. 52(b) (mandating review for harmless error where the issue

was preserved below and review for plain error where it was not). Mr. Ray contends that

his original factual objections to the enhancements, as well as his objection that the

enhancements denied his right to due process, preserved the Booker error issue below. 

First, we note that Mr. Ray’s due process objection does not address Sixth Amendment
1

 We address the substance of Mr. Ray’s due process challenge below.

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rights and therefore does not preserve the Booker error issue.1

 Second, we have

previously held that contesting the evidentiary bases for judge-found facts is not sufficient

to preserve error under Booker. United States v. Dazey, 403 F.3d 1147, 1173–74 (10th

Cir. 2005). We therefore review for plain error. Id. at 1174.

C.

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (quotations

omitted). Because we face constitutional Booker error here, we apply this test less rigidly

than in the non-constitutional context. Dazey, 403 F.3d at 1174. In light of Booker, it is

clear that Mr. Ray’s sentence was erroneously imposed and plainly so. See id. at

1174–75. Nonetheless, we cannot remand for resentencing unless Mr. Ray meets his

burden to satisfy both the third and fourth prongs of plain-error review as well. Id. at

1174–75, 1178.

Under the third prong, “[f]or an error to have affected substantial rights, the error

must have been prejudicial: It must have affected the outcome of the district court

proceedings.” Id. at 1175 (quotations omitted). On remand, Mr. Ray asserts that he

satisfies the third prong of plain-error review but provides no evidence to support his

assertion. In Mr. Ray’s discussion of substantial rights, he presents a lengthy discussion
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of Booker, including its prohibition of mandatorily applied Guidelines enhancements, and

appears to argue that prejudice exists simply because “[t]he District Court relied heavily

on the drug quantities and enhancements in sentencing Mr. Ray.” We have previously

rejected the argument that “the mere difference between the imposed Guidelines sentence

and the sentence the defendant would have received based on the facts found by the jury .

. . is sufficient to satisfy the third prong of plain error.” Id. at 1175–76. Moreover, Mr.

Ray’s conclusory assertion that “[t]he error was prejudicial and affected the outcome of

the trial” similarly does not satisfy the third prong of plain-error review. Mr. Ray has thus

failed to meet his burden to establish that the error here affected his substantial rights.

Even after our independent examination of the record, we have found no evidence

that indicates the error affected Mr. Ray’s substantial rights. As we outlined recently in

Dazey, there are at least two ways to show that one’s substantial rights are affected in a

constitutional Booker error case. Id. at 1175. “First, if the defendant shows a reasonable

probability that a jury applying a reasonable doubt standard would not have found the

same material facts that a judge found by a preponderance of the evidence, then the

defendant successfully demonstrates that the error below affected his substantial rights.” 

Id. To conduct this inquiry, the court of appeals reviews the evidence submitted at the

sentencing hearing and the bases for the defendant’s objections to the facts on which the

sentence was predicated. Id. In Dazey, the defendant met this standard by “strenuously

contest[ing] the factual basis for the sentencing enhancements [by] presenting
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[countervailing] evidence” that allowed us to “conclude [that] there is a reasonable

probability that a jury evaluating the evidence presented at trial would not determine,

beyond a reasonable doubt,” that the factual predicate for the sentencing enhancements

were proven. Id. at 1177.

In the present case, Mr. Ray did not present such countervailing evidence. At the

sentencing hearing, Mr. Ray challenged the evidentiary basis for the enhancement for

possession of a firearm, claiming that it was “clearly improbable” that the possession was

connected to the drug offenses. See U.S.S.G., § 2D1.1 cmt. n.3 (“The adjustment should

be applied if the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.”). An officer from the Tulsa Police Department subsequently

testified that, during the execution of a warrant, officers from the department found a

handgun and two small rocks of crack cocaine, one of which tested positive as cocaine. 

The police officer also testified that the police department had records of conversations

indicating that Mr. Ray was a member of the conspiracy at the time the gun was seized,

including records of wire transfers between Mr. Ray and other members of the

conspiracy. Mr. Ray did not present countervailing factual evidence. Mr. Ray’s

challenges consisted of an alternate explanation that the District Court dismissed out of

hand: “[W]hen [Mr. Ray] says he has [the gun] for his personal protection, that was

probably exactly correct. That’s what most drug dealers have, because they want to

protect both themselves and their product, all of which they consider to be personal
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protection.” The District Court held that the possession of the gun was satisfactorily

linked with Mr. Ray’s activities as part of the conspiracy. Mr. Ray’s personal defense

theory and his contention that the government presented “no evidence” in support of the

enhancement, by no means constitute meaningful countervailing evidence as

contemplated by Dazey. Accordingly, we hold that Mr. Ray has failed to show that there

was a reasonable probability that a jury applying a reasonable doubt standard would not

have found the same material facts.

There is a similar absence of convincing countervailing evidence for the

enhancement for Mr. Ray’s supervisory role in the conspiracy. At the sentencing hearing,

the government reminded the court of testimony from two witnesses who transported

controlled substances for Mr. Ray, as well as testimony that Mr. Ray had accompanied the

head of the conspiracy in the trail car during the transportation of marijuana. Mr. Ray

contended that the government had presented “no evidence at trial that Mr. Ray recruited

the drug couriers” and that there was also not sufficient evidence to prove that he had

decision-making authority or that he was a manager or an organizer in the conspiracy. 

Mr. Ray’s unsubstantiated assertions, however, fall far short of showing that a jury would

not have found the same facts beyond a reasonable doubt.

The second way “a defendant may show that the district court’s error affected his

substantial rights [is] by demonstrating a reasonable probability that, under the specific

facts of his case as analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the
- 9 -

district court judge would reasonably impose a sentence outside the Guidelines range.” 

Dazey, 403 F.3d at 1175 (note omitted). This may be demonstrated when the district

court states that the defendant’s conduct, based on this particular record, did not warrant

the minimum Guidelines sentence. Id. In this case, the District Court did not make any

such statement. Moreover, the District Court declined to sentence Mr. Ray to the

minimum possible sentence within the Guidelines range, instead sentencing him to 280

months’ imprisonment. Finally, Mr. Ray does not argue that any of the § 3553(a) factors

could be used, given the facts of this case, to impose a lesser sentence.

Thus, we conclude that Mr. Ray has not shown that his substantial rights were

affected. Because Mr. Ray fails the third prong of the plain-error review, we hold that the

Booker error in the present case does not merit remand for resentencing.

E.

Finally, having addressed Mr. Ray’s Booker challenges, we now address the ex

post facto and due process arguments he raises on remand. Mr. Ray argues that his

sentence—which, as just explained, is greater than what could have been imposed based

solely on facts found by a jury beyond a reasonable doubt or admitted by him—violates

the ex post facto clause and the due process clause. He argues that although Booker now

permits such a sentence due to its holding that the Guidelines are discretionary, his crimes

were committed prior to Booker and therefore using Booker to justify his heightened

sentence constitutes an impermissible retroactive application of judicial decisionmaking
- 10 -

contrary to both the ex post facto and due process clauses. 

This, however, is not the situation we face here. Contrary to Mr. Ray’s assertion,

this Court is in no way applying Booker to justify a sentence that Booker itself clearly

holds is unconstitutional—that is, a sentence imposed under a mandatory Guidelines

scheme that is greater than what could have been imposed based solely on facts found by

a jury beyond a reasonable doubt or admitted by him. We have simply concluded that

because Mr. Ray fails to meet the third prong of plain-error review, we will not remedy

the error in this case. Mr. Ray’s due process and ex post facto arguments have no

application here.

III. CONCLUSION

On remand from the Supreme Court in light of Booker, we do not revisit our

previous opinion affirming Mr. Ray’s conviction. Further, on plain-error review, we

cannot reverse Mr. Ray’s 280-month sentence. Therefore, we REINSTATE all nonsentencing portions of our previous opinion, as well as our previous discussion of the

imposition of fines, and upon reconsideration in light of Booker AFFIRM Mr. Ray’s

sentence.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge