*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and 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 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/18/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES ROYCE BOLTON,

Defendant-Appellant.

No. 95-6124

(D.C. No. CR 94-00141-001-R)

(W. Dist. of Okla.)

ORDER AND JUDGMENT*

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

James Royce Bolton was indicted on fifteen related firearms and narcotics counts

arising out of a conspiracy to distribute methamphetamine. He eventually pled guilty to

Counts Two and Three. Count Two alleged Mr. Bolton violated 18 U.S.C. § 924(c)(1) by 

acquiring a Colt Double Eagle .45 caliber semi-automatic pistol from Gerry Dan

Goodman in exchange for methamphetamine. Count Three alleged Mr. Bolton, as a

convicted felon, violated 18 U.S.C. § 922(g)(1) by possessing the Colt pistol and a Ruger
1

 We deny Mr. Bolton’s pro se motion to strike his counsel’s brief.

-2-

Model P-89 9mm pistol. The court enhanced the sentences for Mr. Bolton’s gun

convictions on the basis of his narcotics trafficking because the firearms had been used in

the course of drug dealing. The court further concluded that he had possessed

approximately 7.7 pounds of methamphetamine during the course of the conspiracy. The

court sentenced Mr. Bolton to consecutive sentences of 60 and 120 months, to be

followed by 36 months of supervised release. He appeals his sentence, and we affirm.1

First, Mr. Bolton contends Counts Two and Three should have been grouped. He

relies on U.S.S.G. §§ 3D1.1, 3D1.2, and 3D1.3, and United States v. Norman, 951 F.2d

1182 (10th Cir. 1991), in which we held that counts involving imparting false information

regarding firearms and explosives on an aircraft should have been grouped. Here,

however, the offense of using a firearm during a drug trafficking crime carries a

mandatory five-year minimum sentence that must run consecutively to any other term of

imprisonment. 18 U.S.C. § 924(c)(1). The guidelines expressly provide that “[a]ny count

for which the statute mandates imposition of a consecutive sentence is excluded from the

operation of §§ 3D1.2-3D1.5. Sentences for such counts are governed by the provisions

of § 5G1.2(a).” U.S.S.G. § 3D1.1(b). “Counts for which a statute mandates imposition

of a consecutive sentence are excepted from application of the multiple count rules.” Id.

at § 3D1.1(b) (n.1). The guidelines require such sentences to run consecutively with the

sentence on any other count. U.S.S.G. § 5G1.2(a). In this context, Norman is inapposite. 
2

 In his Post-Argument Brief, Mr. Bolton contends his conviction violates the

Double Jeopardy Clause. “The established test for determining whether two offenses are

the ‘same offense’. . . ‘is whether each provision requires proof of a fact which the other

does not.’” United States v. Neal, 692 F.2d 1296, 1305-06 (10th Cir. 1982) (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932), and adding emphasis). Count

Two required proof Mr. Bolton used firearms while distributing methamphetamine, while 

Count Three required proof that he was a convicted felon. These convictions do not

violate the Double Jeopardy Clause.

-3-

The district court did not err in declining to group Counts Two and Three.

Second, Mr. Bolton argues the court erred in sentencing him by reference to

section 2X1.1. Relying on United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.

1993), he contends that section 2X1.1 by its own terms does not apply when a conspiracy

is governed by another offense guideline section. See U.S.S.G. § 2X1.1(c). Mr. Bolton

was not sentenced for conspiracy, however, but for using firearms during drug trafficking. 

Because he “used or possessed any firearm or ammunition in connection with the

commission or attempted commission of another offense,” U.S.S.G. § 2K2.1(c)(1),

section 2K2.1(c)(1)(A) required the court to apply section 2X1.1. Section 2X1.1 in turn

provides that the base offense level be determined by reference to “the base offense level

from the guideline for the substantive offense, plus any adjustments from such guideline

for any intended offense conduct that can be established with reasonable certainty.” Id. at

§ 2X1.1(a). The court determined Mr. Bolton’s base offense level under § 2D1.1, as is

appropriate for drug trafficking. The court did not err in applying section 2X1.1.2

Finally, Mr. Bolton attacks the constitutionality of the Sentencing Guidelines,
-4-

arguing that the guidelines are so vague and incomprehensible as to violate his due

process rights. He asserts they are so complex and unpredictable they fail to give a

defendant fair warning of the punishment he will face. 

Straightforward application of the relevant guidelines dictates Mr. Bolton’s

sentence, but this does not answer the constitutional argument, for “[i]f on its face the

challenged provision is repugnant to the due process clause, specification of details of the

offense intended to be charged would not serve to validate it.” Lanzetta v. State of New

Jersey, 306 U.S. 451, 453 (1939). Although Mr. Bolton has demonstrated the guidelines

are unpopular in some circles, he has not established that defendants are not fairly

warned. Compared to the pre-guideline exercise of judicial discretion, the scheme’s very

complexity serves to give a defendant more warning of the sentence he faces by

specifying how judicial discretion will be channeled and allowing the him “to file

objections and to be heard at sentencing on any issues that impact upon the sentence.” 

United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (per curiam).

Mr. Bolton also argues it violates due process to take into account conduct for

which a defendant was acquitted or not charged. We rejected this argument in United

States v. Coleman, 947 F.2d 1424, 1429 (10th Cir. 1991), cert. denied, 503 U.S. 972

(1992) (sentencing court may “consider trial evidence that was applicable to a charge

upon which the defendant was acquitted”). Id. at 1429. We have also noted that in such

cases most courts have found no double jeopardy violation. United States v. Kelly, 1 F.3d
3

 We have also considered the arguments raised in Mr. Bolton’s Pro Se Brief, and

find no reversible error. He waived his argument that the court erred by failing to

determine the type of methamphetamine when he did not raise it below. United States v.

Deninno, 29 F.3d 572, 580 (10th Cir. 1994), cert. denied, 115 S. Ct. 1117 (1995). His

assertion that this waiver demonstrates ineffective assistance of counsel must be brought

on collateral review. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

banc). We see no clear error in the court’s application of the sentence enhancement for

leaders and organizers of criminal activity under U.S.S.G. § 3B1.1(a). Finally, Bailey v.

United States, 116 S. Ct. 501 (1995), provides no basis to challenge his conviction, since

there the Court specifically suggested that barter with a firearm constitutes “use” within

the meaning of 18 U.S.C. § 924(c)(1), id. at 507.

-5-

1137, 1139-40 n.1 (10th Cir. 1993). Prior to the Sentencing Guidelines, the Supreme

Court held that taking into account, for sentencing purposes, actions for which the

defendant had not been indicted, tried or convicted did not violate due process and was a

rational exercise of judicial discretion. United States v. Grayson, 438 U.S. 41, 52-54

(1978). The subsequent enactment of the Sentencing Guidelines in no way weakens

Grayson’s application here. The court did not violate Mr. Bolton’s right to due process.3

The judgment of the district court sentencing Mr. Bolton is AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge