F I LED

United States Court of Appeals

Tenth Circuit

September 21, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DENNIS S. HERULA,

Defendant - Appellant.

Nos. 05-1091 & 05-1109

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 02-CR-485-RB)

H. Michael Steinberg, Englewood, Colorado, for Defendant - Appellant.

Jerry N. Jones, Assistant United States Attorney (William J. Leone, United States

Attorney, and Andrew A. Vogt, Assistant United States Attorney, on the briefs),

Denver, Colorado, for Plaintiff - Appellee.

Before HARTZ, HOLLOWAY and O’BRIEN, Circuit Judges.

O’BRIEN, Circuit Judge.

Dennis S. Herula pled guilty pursuant to a plea agreement to seven counts

of wire fraud in the United States District Court for the District of Colorado, as

well as two counts of fraud (wire fraud and bankruptcy fraud) and one count of
 Rule 20(a) provides: 1

(a) Consent to Transfer.

A prosecution may be transferred from the district where the indictment or

information is pending . . . to the district where the defendant is arrested,

held, or present if:

(1) the defendant states in writing a wish to plead guilty or nolo

contendere and to waive trial in the district where the indictment or

information is pending, consents in writing to the court’s disposing

of the case in the transferee district, and files the statement in the

transferee district; and 

(2) the United States attorneys in both districts approve the transfer

in writing.

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money laundering arising out of a federal case in the District of Rhode Island,

which had been transferred to the District of Colorado. The district court

conducted a consolidated sentencing and sentenced Herula to 188 months

imprisonment in both cases, to be served concurrently. Herula appeals from his

sentence, arguing it is unreasonable under United States v. Booker, 543 U.S. 220

(2005). We exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. §

1291, and AFFIRM.

I. Background

On August 25, 2004, Herula was indicted in the District of Colorado for,

inter alia, seven counts of wire fraud in violation of 18 U.S.C. § 1343 (Case No.

02-CR-485). On October 22, 2004, charges in a separate District of Rhode Island

information were transferred to the District of Colorado for plea and sentencing

pursuant to Rule 20(a) of Federal Rules Criminal Procedure. The Rhode Island 1
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case involved two counts of fraud — wire fraud and bankruptcy fraud — and one

count of money laundering, in violation of 18 U.S.C. §§ 1343, 152(1) and

1956(a)(1)(B)(I), respectively. The case was assigned to the same district judge

and docketed as Case No. 04-CR-449. The cases were never formally

consolidated. 

On October 26, 2004, Herula pled guilty pursuant to a plea agreement to

the seven counts of wire fraud in the Colorado indictment. In the plea agreement,

the government and Herula “agree[d] and stipulate[d] that the guidelines

calculation set forth below [is] applicable in this case, that the parties will

recommend that [the guidelines] be applied as set forth below, and that neither

party will seek a departure.” (05-1091 R. Vol. I, Doc. 172 at 2.) The calculation

in the plea agreement set Herula’s total offense level at 31 and his criminal

history category at III, resulting in an estimated guideline range of 135 to 168

months imprisonment. The government also agreed to recommend that Herula be

“sentenced . . . at the bottom of the applicable guideline range as determined by

the Court,” dismiss the remaining Colorado counts, and not oppose Herula’s

request to be sentenced concurrently with any sentence he received in the Rhode

Island case. (Id. at 2.) The plea agreement specifically noted, however, that “the

Court may impose any sentence, up to the statutory maximum, regardless of any

guideline range computed, and that the Court is not bound by any position or

recommendation of the parties.” (Id. at 14.) See FED. R. CRIM. P. 11(c)(1)(B)
 The 2002 edition of the Sentencing Guidelines were used at Herula’s 2

sentencing. In his reply brief, Herula argues different versions of the guidelines

should have been applied, i.e., the 2001 guidelines to the Colorado wire fraud

counts and the 2000 guidelines to the Rhode Island money laundering count. 

However, this argument was not raised below and was waived during oral

argument.

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(plea agreement provision recommending “that a particular sentence or sentencing

range is appropriate[,] . . . does not bind the court”).

On November 4, 2004, Herula pled guilty pursuant to a plea agreement to

all three counts of the Rhode Island information. The Rhode Island plea

agreement was substantially the same as the Colorado agreement. It calculated

Herula’s combined total offense level for all counts as 31, but his criminal history

category as only a II. Based on the “estimated offense level(s)” and the

“(tentative) criminal history category,” the resulting guideline range was 121 to

151 months imprisonment. (05-1109 R. Vol. I, Doc. 3 at 20.) The plea

agreement also committed the government to recommend a sentence of 121

months and not to oppose a request by Herula that his sentence run concurrently

with the sentence he received in the Colorado case. Both sentences were set to be

entered the same day.

A presentence investigation report (PSR) was prepared addressing both

cases. It grouped Herula’s three Rhode Island counts with the seven Colorado 2

counts as “multiple counts” pursuant to Application Note 1 of USSG §5G1.2 and

the grouping rules in Chapter 3, Part D. This resulted in a total offense level of
 The four level difference between the Colorado plea agreement estimate 3

and the PSR calculation was due to the inclusion of a two level upward

adjustment for Herula occupying an aggravating role pursuant to §3B1.1(c) and

an additional two point upward adjustment based on Herula’s abuse of a position

of trust pursuant to §3B1.3. Both of these adjustments were based on conduct

arising from the Rhode Island money laundering counts. Unfortunately, the four

level difference between the Rhode Island plea agreement estimate, which

included the aggravating role and abuse of position adjustments, and the PSR

defies similar comparison. Simply put, the Rhode Island plea agreement’s

estimate arose from the money laundering count, which had an adjusted offense

level of 34, the highest of the three counts. With the acceptance of responsibility

adjustment, the combined total offense level was 31. However, when the PSR

grouped the Rhode Island and Colorado counts, the fraud counts had a higher

offense level than the money laundering count. Thus, under the guidelines’

grouping rules, the higher offense level was used. This higher offense level was

largely due to the additional $64,850,000 in loss from the Colorado fraud counts. 

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35 after a three point reduction for acceptance of responsibility, compared with an

offensive level of 31 under the separate plea agreements. In light of Herula’s 3

criminal history category of II, the PSR recommended a guideline range of 188 to

235 months imprisonment. Herula objected to the grouping of counts from both

cases, arguing the cases were not consolidated for sentencing purposes thus

rendering §5G1.2 inapplicable. He also argued application of §5G1.2 was unfair

because neither party anticipated it.

After listening to argument, the district court adopted the recommendation

of the PSR and sentenced Herula to 188 months imprisonment in each case, to run

concurrently. The district court stated its “sentence would be the same, if not

greater, under its independent analysis under 18 U.S.C. [§] 3553(a).” (05-1091 R.

Vol. III at 29.) On February 11, 2005, judgment was entered in both cases and
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Herula filed a notice of appeal in both cases on February 17. On July 6, 2005, we

ordered the appeals consolidated on Herula’s motion. 

II. Discussion

Herula challenges the reasonableness of his sentence, arguing the district

court erred by computing a consolidated sentencing guideline range and the

sentence imposed was unreasonable because it was in excess of the range

contemplated in the plea agreements. He also argues the advisory application of

the guidelines after Booker, in a case premised on guilty pleas entered before

Booker, violates the Ex Post Facto Clause of the United States Constitution.

A. Reasonableness of Sentence

After Booker, “district courts are still required to consider Guideline

ranges, which are determined through application of the preponderance standard,

just as they were before. The only difference is that the court has latitude . . . to

depart from the resulting Guideline ranges.” United States v. Magallanez, 408

F.3d 672, 685 (10th Cir.) (citation omitted), cert. denied, 126 S.Ct. 486 (2005). 

See United States v. Resendiz-Patino, 420 F.3d 1177, 1184 n.6 (10th Cir. 2005)

(“Relieved of the mandatory application of the guidelines by Booker, district

courts are now permitted to give more sway in sentencing to the factors

enumerated in 18 U.S.C. § 3553(a).”), cert. denied, 126 S.Ct. 1098 (2006). Thus,

“notwithstanding Booker’s invalidation of the mandatory nature of the sentencing

guidelines, ‘district courts must still consult the Guidelines and take them into
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account when sentencing.’” United States v. Clark, 415 F.3d 1234, 1246 (10th

Cir. 2005) (O’Brien, J., dissenting) (citation omitted, quoting United States v.

Doe, 398 F.3d 1254, 1257 n.5 (10th Cir. 2005)). In United States v. Kristl, we

fashioned a two-step approach for post-Booker appellate review of sentences

imposed within the applicable guideline range. 437 F.3d 1050, 1055 (10th Cir.

2006). First, we determine whether the district court correctly calculated the

applicable guideline range. Id. at 1054-55. If so, the sentence “is presumptively

reasonable” subject to rebuttal by the defendant “in light of the other sentencing

factors laid out in § 3553(a).” Id. at 1055. We still review legal questions de

novo, factual findings for clear error, and give due deference to the district

court’s application of the guidelines to the facts. United States v. Wolfe, 435 F.3d

1289, 1295 (10th Cir. 2006).

Herula challenges the district court’s calculation of the applicable guideline

range. Specifically, he challenges whether the Colorado and Rhode Island counts

constitute “multiple counts” for purposes of USSG §5G1.2. His main argument is

that the Colorado and Rhode Island cases were never consolidated and thus the

Colorado and Rhode Island cases should have been treated separately for

sentencing purposes.

Application Note 1 to USSG §5G1.2 states in relevant part:

This section applies to multiple counts of conviction (1) contained in

the same indictment or information, or (2) contained in different

indictments or informations for which sentences are to be imposed at
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the same time or in a consolidated proceeding.

In this case, the district court found Herula’s Colorado and Rhode Island counts

met the terms of Application Note 1, and grouped all counts under Chapter 3, Part

D’s grouping rules. 

Application Note 1 to §5G1.2 is seldom applied and, unsurprisingly, there

is a dearth of case law interpreting it. Relying on the second clause of

Application Note 1, Herula argues a consolidation order must be entered by the

district court prior to counts in separate indictments being treated as “multiple

counts” under §5G1.2. However, this argument overlooks the entire clause which

also treats counts “contained in different indictments or informations for which

sentences are to be imposed at the same time” as “multiple counts” for purposes

of §5G1.2. The presence of the disjunctive “or” precludes a reading of

Application Note 1 that would require a consolidated proceeding to qualify counts

in separate indictments or informations as “multiple counts.”

This conclusion, however, does not end the analysis. Our next question is

whether the provisions of §5G1.2 should even be considered when calculating

Herula’s offense level under Chapter 3, Part D’s grouping rules. We have not

previously addressed this question, which requires our entry into the labyrinth

that is the sentence guidelines’ grouping rules. See United States v. Hernandez

Coplin, 24 F.3d 312, 320 (1st Cir. 1994) (“The grouping rules are one of those
 Assuming the Rhode Island and Colorado counts were to be treated as 4

“multiple counts” under §5G1.2, Herula challenges for the first time in his reply

brief whether the bankruptcy fraud claim was properly grouped with the wire

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chapters in the Sentencing Guidelines where practical judgments, unexplained

policy choices, and extreme complexity are so fused that even the most expert of

lawyers and judges can be led astray.”). Mercifully, our stay need only be a short

one.

 By its terms, §5G1.2 is not directly applicable to the initial calculation of

the guideline range. However, as two of our sister circuits - the First and Sixth

Circuits - have recognized, §5G1.2 does not make sense unless its definitions are

read back into Chapter 3, Part D’s grouping analysis. Hernandez Coplin, 24 F.3d

at 318 n.6; United States v. Griggs, 47 F.3d 827, 832 (6th Cir. 1995). This “quirk

in the Sentencing Guidelines” arises because application of §5G1.2 is predicated

on first finding the offense level under §3D1.4. USSG §1B1.1; Griggs, 47 F.3d at

831. But to determine the offense level under §3D1.4, the district court must

know which counts are to be included in its grouping calculation. To do that, it

must first look to §5G1.2 to determine whether multiple counts are at issue in the

case. Consequently, “[t]he only logical reading of U.S.S.G. §§ 3D1.1-5 and

5G1.2 requires that § 3D1.4 apply to multiple counts in separate indictments.” 

Griggs, 47 F.3d at 832. Thus we join our sister circuits in holding §5G1.2’s

analysis of multiple counts must be read back into Chapter 3, Part D’s grouping

calculation.4
fraud claims under §3D1.2(d). Relying on Application Note 5 to §3D1.2, he

argues the claims should have been grouped separately resulting in a lower

offense level. We note the terms of §3D1.2(d) require grouping “[w]hen the

offense level is determined largely on the basis of the total amount of harm or

loss.” Such is clearly the case with various types of fraud claims, including wire

and bankruptcy fraud. The offense level for both are determined largely by the

amount of loss. See USSG §2B1.1 (covering various kinds of fraud claims). 

Further, §3D1.2(d) specifically requires offenses covered by §2B1.1 to be

grouped under §3D1.2(d). In any event, this argument was not preserved in the

opening brief and we need not consider it here. See Stump v. Gates, 211 F.3d

527, 533 (10th Cir. 2000). Moreover, Herula waived most of his reply brief at

oral argument.

 The Rhode Island plea agreement similarly provided that “the Court may 5

impose any sentence, up to the statutory maximum, regardless of any guideline

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Herula argues enforcing a provision of the guidelines that was

unanticipated by the parties makes his sentence unreasonable under Booker. We

start by noting that because Herula was sentenced within a properly calculated

guideline range, his sentence is afforded a presumption of reasonableness. Kristl,

437 F.3d at 1055. In our view, the expectations of the parties that a different

sentencing calculation would prevail are not sufficient to overcome this

presumption. To hold otherwise would serve to reward misinterpretations of the

guidelines. The parties’ sentencing expectations are certainly not listed among

the factors included in § 3553(a). 

Moreover, Herula’s Colorado plea agreement specifically notified him that

“the Court may impose any sentence, up to the statutory maximum, regardless of

any guideline range computed, and that the Court is not bound by any position or

recommendation of the parties.” (05-1091 R. Vol. I, Doc. 172 at 14.) His 5
range computed, and that the Court is not bound by any position of the parties.” 

(05-1109 R. Vol. I, Doc. 3 at 17.)

Blakely v. Washington, 542 U.S. 296 (2004). 6

 Ironically, if we were to adopt Herula’s arguments and allow him to be 7

resentenced separately on the Colorado indictment and Rhode Island information,

it seems probable his sentence would be higher. Although his recommended

range might be lower, the district court would be free to impose consecutive

rather than concurrent sentences on remand. See 18 U.S.C. § 3584(a); USSG

§5G1.3(a). The government’s recommendation for concurrent sentences would

not be binding on the district court. Thus, although Herula’s sentencing range

was higher than anticipated, he still potentially benefitted from having both cases

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assertion that the parties stipulated a particular guideline range would be applied

by the district court is not borne out by the record. The government merely

agreed that it anticipated a particular guideline range would be used and

committed itself to recommend a particular sentence, which it did. 

Rule 11(c)(1)(B) makes clear that the district court is not bound by a

recommendation by the government as to a particular sentence or sentencing

range. If Herula wanted to ensure a certain sentencing outcome in exchange for

his guilty plea, he should have negotiated a firm agreement to a specific sentence

or range. See FED. R. CRIM. P. 11(c)(1)(C). 

Herula’s final argument — that he is entitled to mandatory application of

the guidelines should “Congress choose to comply with the requirements” of

Blakely — is also misplaced for the simple reason that Congress has not 6

attempted to make the guidelines mandatory in the wake of Booker. (Appellant’s

Br. at 19.) Consequently, Herula’s sentence is reasonable.7
grouped as multiple counts.

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B. Ex Post Facto

Article I of the U.S. Constitution prohibits Congress and the states from

passing an “ex post facto Law.” See U.S. CONST. art. I, § 9, cl. 3; art. I, § 10,

cl. 1. Although by its terms the Ex Post Facto Clause limits legislatures instead

of the judiciary, “limitations on ex post facto judicial decisionmaking are inherent

in the notion of due process.” Rogers v. Tenn., 532 U.S. 451, 456 (2001). 

“Although ex post facto principles are thus relevant to the retroactive application

of judicial decisions through the due process clause of either the Fifth or the

Fourteenth Amendment, the Ex Post Facto Clause is not incorporated wholesale

or ‘jot-for-jot.’” Evans v. Ray, 390 F.3d 1247, 1251 (10th Cir. 2004). “‘[D]ue

process limitations on the retroactive application of judicial interpretations of

criminal statutes’ only apply to those decisions ‘that are unexpected and

indefensible by reference to the law which had been expressed prior to the

conduct in issue.’” Id. (quoting Rogers, 532 U.S. at 461).

 We, as well as all other circuits, have routinely rejected ex post facto

arguments premised on Booker. See United States v. Rines, 419 F.3d 1104, 1106-

07 (10th Cir. 2005) (“We decline Defendant’s invitation to hold that the Supreme

Court ordered us to violate the Constitution . . . . The only difference between

the Booker regime under which his sentence is determined and the regime he

would have anticipated at the time of his offense is that the guidelines are not
See also United States v. Staten, 450 F.3d 384, 389 (9th Cir. 2006); 8

United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006); United States v.

Thomas, 446 F.3d 1348, 1354-55 (11th Cir. 2006); United States v. Counce, 445

F.3d 1016, 1019 (8th Cir. 2006); United States v. Pennavaria, 445 F.3d 720, 723-

24 (3d Cir. 2006); United States v. Davenport, 445 F.3d 366, 369-70 (4th Cir.

2006); United States v. Charon, 442 F.3d 881, 893 (5th Cir. 2006); United States

v. Fairclough, 439 F.3d 76, 79 (2d Cir.), cert. denied, 126 S.Ct. 2915 (2006);

United States v. Richardson, 437 F.3d 550, 555 (6th Cir. 2006); United States v.

Alston-Graves, 435 F.3d 331, 343 (D.C. Cir. 2006); United States v. Perez-Ruiz,

421 F.3d 11, 15 (1st Cir. 2005), cert. denied, 126 S.Ct. 1092 (2006).

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mandatory.”), cert. denied, 126 S.Ct. 1089. Although Herula’s argument is 8

framed differently from previous ex post facto arguments, it is equally defective. 

First and foremost, we note Booker has not been applied retroactively, but only to

cases on direct review at the time of the opinion. See Booker, 125 S.Ct. at 769;

United States v. Bellamy, 411 F.3d 1182 (10th Cir. 2005). Additionally, Herula

was sentenced within a correctly calculated guideline range. Rines, 419 F.3d at

1107 (“[Defendant] was sentenced within the guidelines range, so he cannot

complain of any unanticipated harshness.”). There is no suggestion Herula would

have been sentenced differently had the guidelines been applied mandatorily. 

Consequently, he had adequate notice as to the sentence he received. As Herula’s

argument concedes, in light of our preceding discussion, any increase in Herula’s

sentence was due to his misinterpretation of the Guidelines, not as a result of

Booker’s material modification of the guidelines.

Based on the forgoing analysis, we AFFIRM Herula’s sentence and DENY

his Motion for a Limited Remand.