FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED STATES COURT OF APPEALS May24,2005 

TENTH CIRCUIT PATRICK FISHER 

Clerk 

UNITED ST A TES OF AMERICA, 

Plainti ff-Appellee, 

V. 

GEOFFREY CHRIS CLEMENT, 

Defendant-Appellant. 

No. 04-1164 

(D.C. No. 99-CR-383-N) 

(Colorado) 

ORDER AND JUDGMENT* 

Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges. 

Geoffrey C. Clement was convicted by a jury of sixteen counts of wire and 

interstate fraud in violation of 18 U.S.C. §§ 1341, 1343; thirteen counts of money 

laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A), 1957; and aiding and 

abetting the same in violation of 18 U.S.C. § 2. The presentence report (PSR) 

grouped the wire fraud and money laundering counts together and calculated 

• After examining appellant's brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the 

determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 

34.1 (G). The case is therefore submitted without oral argument. This order and 

judgment is not binding precedent, except under the doctrines of law of the case, 

res judicata, or collateral estoppel. The 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. 

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offense levels for each group. With respect to the fraud convictions, the PSR 

calculated Mr. Clement's base level at six and then recommended (1) a fourteenlevel increase for an amount of loss more than $5,000,000 but less than 

$ I 0,000,000; (2) a two-level increase because the offenses involved more than 

minimal planning; (3) a four-level increase for affecting a financial institution; 

and ( 4) a two-level increase for being an organizer, leader, manager, or 

supervisor, resulting in a total offense level of twenty-eight. With respect to the 

money laundering convictions, the PSR calculated Mr. Clement's base offense 

level at twenty-three and then recommended (1) a five-level increase for a value 

of funds involved in an international money laundering scheme of more than 

$1,000,000 but less than $2,000,000 and (2) a two-level increase for being an 

organizer, leader, manager, or supervisor, resulting in a total offense level of 

thirty. Applying U.S.S.G. § 3D1.4, the PSR adjusted Mr. Clement's two offense 

levels to a combined total offense level of thirty-two, which, when coupled with 

his criminal history category of II, yielded an applicable guidelines range of 135 

to 168 months imprisonment. 

The district court adopted the recommendations of the PSR and sentenced 

Mr. Clement in the middle of the guidelines range to 156 months imprisonment on 

the international money laundering convictions. The court sentenced him to the 

statutory maximums on his wire fraud and domestic money laundering 

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convictions, five and ten years, respectively, to be served concurrently with his 

156-month term on his international money laundering convictions. Mr. Clement 

appeals, claiming the district court violated his Sixth Amendment right to a jury 

trial by imposing a sentence exceeding the maximum authorized solely by the 

jury's verdict. See United States v. Booker, 125 S. Ct. 738, 756 (2005). We 

affirm. 

In Booker, the Court held the Sixth Amendment requires that "[a]ny 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." Id. To remedy the guidelines' Sixth Amendment problem, the Court 

severed and excised 18 U.S.C. § 3553(b )( 1 ), which had required sentencing courts 

to impose a sentence within the applicable guidelines range, subject to departures 

in limited cases. Id. at 756-57. As a result, the guidelines are now advisory in all 

cases. Id. at 757. In addition, the Court expressly stated that its "interpretation 

of the Sentencing Act" must be applied "to all cases on direct review." Id. at 769. 

Thus, Mr. Clement's sentence must be evaluated in light of the Court's holding in 

Booker. 

Because Mr. Clement did not raise his Sixth Amendment argument in the 

district court, we review his claim for plain error. FED. R. CRIM. P. 52(b); see 

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also United States v. Dazey, 403 F .3d 114 7, 1173-74 (10th Cir. 2005). To 

establish plain error, Mr. Clement must demonstrate that there was (1) error (2) 

that was plain and (3) that affected his substantial rights. United States v. Cotton, 

535 U.S. 625, 631 (2002); United States v. Gonzalez-Huerta, 403 F.3d 727, 732 

(10th Cir. 2005) (en bane). If Mr. Clement satisfies his burden of establishing the 

first three prongs of the plain error test, we may exercise our discretion to correct 

the error if it "seriously affect[ed] the fairness, integrity or public reputation of 

judicial proceedings." Johnson v. United States, 520 U.S. 461, 469-70 (1997) 

(quoting United States v. Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta, 

403 F.3d at 732. 

There is little doubt Mr. Clement can satisfy the first two prongs of the 

plain error analysis. First, the district court committed constitutional error when 

it applied mandatory enhancements to Mr. Clement's sentence as a result of 

findings concerning: (1) the intended loss amount, (2) Mr. Clement's role in the 

offenses, (3) the effect of the offenses on a financial institution, and (4) the 

amount of planning necessary to commit the offenses. Booker, 125 S. Ct. at 749 

("Since this fact was found by a judge using a preponderance of the evidence 

standard, the sentence violated [the defendant's] Sixth Amendment rights."). 

Second, the error is now "plain" or "obvious." Johnson, 520 U.S. at 468 ("where 

the law at the time of trial [ or sentencing] was settled and clearly contrary to the 

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law at the time of appeal - it is enough that an error be 'plain' at the time of 

appellate consideration"). 

In order to demonstrate that an error affected his substantial rights, "a 

defendant must show a 'reasonable probability' that the defects in his sentencing 

altered the result of the proceedings." Dazey, 403 F.3d at 1175 (citing United 

States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004)). We have held that, 

in the context of reviewing a constitutional Booker error, a defendant may meet 

this burden in two ways: 

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 ... Second, a defendant may show that the district court's error 

affected his substantial rights by demonstrating a reasonable probability 

that ... the district court judge would reasonably impose a sentence outside 

the Guidelines range. 

Id. It does not appear that, on appeal, Mr. Clement either contends that there was 

insufficient evidence for a jury to find beyond a reasonable doubt the sentencingenhancing fact that the district court found by a preponderance of the evidence or 

that the district court would impose a sentence outside the guidelines range on 

remand. 1 We need not decide whether Mr. Clement satisfies the third prong of 

1 Mr. Clement did not contest the enhancements he received for more than 

minimal planning or for affecting a financial institution on any basis. Moreover, 

he challenged the amount of intended loss only to the extent that he claimed the 

amount was not converted properly from Australian to United States dollars - an 

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the plain error analysis, however, "because even assuming [his] substantial rights 

were affected, the error did not seriously affect the fairness, integrity, or public 

reputation of judicial proceedings." Cotton, 535 U.S. at 632-33; Johnson, 520 

U.S. at 469- 70; Gonzalez-Huerta, 403 F .3d at 736 ("We need not determine 

whether [the defendant] can satisfy this burden because even if he were to meet 

the third prong, he must also satisfy the fourth prong to obtain relief."). 

Mr. Clement has the burden of persuading the court that the error seriously 

affected the fairness, integrity, or public reputation of judicial proceedings. 

United States v. Vann, 535 U.S. 55, 63 (2002). After the district court determined 

the applicable guidelines range was 13 5 to 168 months imprisonment, it opted to 

sentence Mr. Clement to a 156-month term, stating: 

If you're not sick, I would sentence you to the maximum term, because I 

think you're incorrigible. I think that you're incorrigible primarily because 

you don't accept any responsibility. The first step in rehabilitation is 

acceptance of responsibility, and you shift responsibility to everybody 

except yourself. And for that reason, I don't think that you can be 

rehabilitated. I think that you will always be a fraud and a charlatan ... 

my prediction is that if you got out, you would do it again, if you were 

physically able to do so. However, since you are ill, the compromise I 

reach is that I'll impose a sentence somewhere in the middle of the 

guideline range. 

Rec., vol. XXXI at 30. In other words, the court calculated Mr. Clement's 

argument that ultimately proved to be incorrect. While Mr. Clement did object to 

the aggravating role offense enhancement recommended by the presentence report 

on the basis that his co-defendant, Mr. Wilhite, acted alone and "was never 

directed by" him, he has abandoned that argument on appeal. 

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guidelines range, exercised its discretion, and sentenced Mr. Clement more or less 

in the middle of the applicable range. As a result, any argument that the district 

court might have sentenced Mr. Clement to a lower term of imprisonment had it 

understood it had discretion to do so is simply unpersuasive. Because the court 

decided to increase punishment rather than exercise leniency where it had 

discretion, there is no basis for us to assume Mr. Clement would receive a lesser 

sentence if he were resentenced under a discretionary guidelines regime in which 

the district court is required to "consider" the guidelines when it exercises its 

discretion. Booker, 125 S. Ct. at 764. 

Under these circumstances, Mr. Clement has failed to meet his burden of 

persuading us that the Sixth Amendment error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. We therefore decline to 

exercise our discretion to correct the forfeited error. For the foregoing reasons, 

we AFFIRM. 

ENTERED FOR THE COURT 

Stephanie K. Seymour 

Circuit Judge 

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