* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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 of 10th Cir. R. 36.3. 

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

### June 7, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. STANLEY DANYE SCARBOROUGH, Defendant-Appellant. No. 04-7068 (D.C. No. CR-03-118-1-P) (E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , McKAY and HENRY , Circuit Judges.

Stanley Danye Scarborough (“Defendant”) pled guilty to three counts of drug possession with intent to distribute. Prior t o sentencing, he filed a pro se motion to withdraw his plea, which the district cou rt denied. Defendant now appeals his conviction as well as the court’s decis ion to sentence him to 1511 Defendant consented to proceed before the magistrat e judge for the

purposes of changing his plea, thus the magistrate judge’s acceptance of the plea was never formally adopted by the district court. (Aplt. App. at 18.) - 2 - months’ imprisonment. Taking jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM

.

BACKGROUND On November 14, 2003, the federal grand jury for th e Eastern District of Oklahoma issued a three-count indictment against De fendant. (Aplt. App. at 15- 16.) Count I charged Defendant with knowingly and inte ntionally possessing in excess of 50 grams of crack cocaine with intent to distribute. (Id. at 15.) Count II charged Defendant with knowingly and intentional ly possessing a detectable amount of methamphetamine with intent to distribute

. (Id. at 16.) Finally, Count III charged Defendant with knowingly and intentiona lly possessing a detectible amount of cocaine with intent to distribute. (Id. ) After being appointed counsel, Defendant pled not g uilty to all charges. A jury trial was initially scheduled for January 2, 2 004, but was later postponed to February 2, 2004. (Id. at 3.) Jury selection commenced on February 2, 2004 and trial was set for February 17, 2004. (Id. at 8.) On February 13, Defendant changed his plea to guilty on all counts before a m agistrate judge 1 and waived his right to a jury trial. (Id. at 18-19.) At the plea hearing, Defendant admitted to- 3 -

possessing with an intent to distribute approximate ly 75 grams of crack cocaine, “a small amount” of methamphetamine, and an unspeci fied amount of cocaine. (Id. at 37.) The magistrate accepted Defendant’s guilty plea a nd referred the matter to the probation department for preparation of a sentencing report. (Id. at 38-39.) One week later, Defendant filed a pro se motion with the district court to withdraw his guilty plea, stating that he “[did] no t agree with the plea because of certain civil liberties that have been violated und er prejudicial/judicial error.” (Id. at 41.) At a hearing on the motion, Defendant, represente d again by his appointed lawyer, alleged that his prosecution was racially motivated and that he did not actually possess the amounts of drugs he ha d previously admitted to possessing. (Id. at 47, 51.) The district court denied the motion, holding that Defendant “[had] not met his burden of establishing a ‘fair and just’ reason to allow withdrawal of his pleas of guilty.” (Id. at 78.) The probation department issued a pre-sentence repo rt (“PSR”) on March 24, 2004, and the district court set sentencing forJune 18, 2004. (Id. at 10, 92.) According to the PSR, Defendant’s base offense leve l (32) and criminal history category (I) specified a guideline range of 121-151 months. (Id. at 97, 104.) The probation officer recommended a two-point offen se level enhancement based upon evidence that two firearms were found in Defen dant’s bedroom. (Id. at 97) ;- 4 -

see U.S.S.G. § 2D1.1(b)(1). With an adjusted offense level of thirty-four, the new guideline range was 151-188 months. (Id. at 92.) However, the probation officer also recommended a two-level reduction for acceptance of responsibility, bringing the range back down to 121-151 months. Defendant, now represented by a different attorney, filed objections to the PSR and a motion to reconsider the withdrawal of th e guilty plea. (Id. at 79.) The district court denied the motion to reconsider in a minute order, stating that the motion “contains no new evidence which establis hes that the defendant is innocent or that the defendant’s plea of guilty was not knowingly and voluntarily entered.” (Id. at 11.) At sentencing, the district court overruled Defenda nt’s objections to the
PSR. (Id. at 12.) The Government also filed an objection to the dow nward adjustment for acceptance of responsibility, which the district court granted. The court then sentenced Defendant to 151 months’ impri sonment (the bottom of the calculated range) on each of the three counts, term s to run concurrently, followed by a term of 60 months’ supervised release. (Id. at 12-13.) In addition, the court imposed a $300 special assessment. (Id. at 13.) Defendant timely filed a notice of appeal. (Id. at 14) ; see Fed. R. App. P. (4)(b)(1)(A)(i).- 5 - DISCUSSION On appeal, Defendant presents three issues for revi ew: (1) whether the district court abused its discretion by failing to grant Defendant’s motion to withdraw his guilty plea; (2) whether the district court’s refusal to permit a twolevel downward adjustment for acceptance of respons ibility was clearly erroneous; and (3) whether the district court erred in applying a two-level upward adjustment for the presence of firearms when that i ssue was neither pled nor proved. I. Withdrawal of Defendant’s guilty plea We review the denial of a motion to withdraw a guil ty plea for an abuse of discretion and will not reverse absent a showing th at the court acted “unjustly or unfairly.” United States v. Graves , 106 F.3d 342, 343 (10th Cir. 1997). A district court may allow a defendant to withdraw his guilty plea before sentencing “upon a showing . . . of any fair and ju st reason.” Fed. R. Crim. P. 32(d). The burden of demonstrating a fair and justreason rests with the defendant, based on the following considerations: ( 1) Defendant’s assertion of innocence; (2) resulting prejudice to the governmen t; (3) Defendant’s delay in filing the withdrawal motion; (4) inconvenience to the court; (5) Defendant’s assistance of counsel; (6) knowledge and voluntarin ess of the plea; and (7) resulting waste of judicial resources. Graves , 106 F.3d at 343.- 6 -

Here, we cannot conclude that the district court ab used its discretion in refusing to allow Defendant to withdraw his guilty plea. Significantly, at the hearing on his motion to withdraw, Defendant admitt ed that he had no evidence to support his assertions that (1) his prosecution was racially motivated; or (2) he actually possessed a lesser quantity of drugs than the amount to which he admitted in his plea colloquy. (Aplt. App. at 47-52.) Thus, nothing in the motion calls into question Defendant’s guilt or the voluntariness of the plea. In addition, the District Court correctly noted that b y changing his plea just days before trial (and after a jury had been empaneled), allowing him to withdraw that plea and demand a new jury would place significant hardship on the government and waste judicial resources. (Id. at 6-7.) Defendant’s motion for reconsideration does raise s ome issues with the quality of Defendant’s legal representation at the plea colloquy. In an affidavit attached to the motion to reconsider, Defendant con tends that his attorney told him that if Defendant did not falsely admit to havi ng seventy-six grams of crack, his sentence would be doubled. (See Aplt. App. at 87-88.) This allegation, if true, would be quite troubling. But the fact of th e matter is that it is supported only by Defendant’s self-serving affidavit which wa s written with the benefit of hindsight. Given the fact that Defendant admitted at the plea hearing that he was satisfied with his legal representation, we are notleft with a “definite and firm2 U.S.S.G. § 3E1.1(a) provides, “If the defendant cle arly demonstrates

acceptance of responsibility for his offense, decre ase the offense level by 2 levels.” - 7 - conviction that the lower court made a clear error of judgment” by refusing to countenance Defendant’s revised version of events. (Id. at 35) ; Moothart v. Bell , 21 F.3d 1499, 1504 (10th Cir. 1994). Accordingly, we hold that the district court did not abuse its discretion in denying Defendant’s motion to withdraw his guilty plea. Defendant’s conviction is therefore affirmed

.

II. Acceptance of responsibility Defendant claims that the district court, in calcul ating his sentence, erred by refusing to grant a downward adjustment for acce ptance of responsibility. See U.S.S.G. § 3E1.1(a). 2 In the PSR, the probation officer recommended that the court decrease Defendant’s offense level by two poi nts based on Defendant’s decision to plead guilty and admit his guilt at the plea colloquy. (Aplt. App. at 96.) At the sentencing hearing, the Government objecte d to this downward adjustment, and the court sustained the objection. (Id. at 12.) Whether a defendant has accepted responsibility forpurposes of U.S.S.G. § 3E1.1 is a factual question that we review under a clearly erroneous standard. United States v. Dazey , 403 F.3d 1147, 1172 (10th Cir. 2005). We recogniz e that “[t]he sentencing judge is in a unique position to evaluate a defendant’s- 8 -

acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U .S.S.G. § 3E1.1, cmt. n.5. Appellant’s failure to designate the transcript of the sentencing hearing as part of the record on appeal has hampered our efforts at reviewing whether the district court’s factual finding was clearly errone ous. While we do know that the Government made an objection to the downward adjust ment and that the court sustained this objection, we have no way of knowing precisely why and for what reasons the court chose to sustain the objection. (See Aplt. App. at 12.) Counsel’s failure to designate the relevant record requires this court to hold that Appellant has not met the burden of proving that th e district court’s findings were clearly erroneous. See McEwen v. City of Norman , 926 F.2d 1539, 1550 (10th Cir. 1991); Trujillo v. Grand Junction Reg’l Ctr. , 928 F.2d 973, 976 (10th Cir. 1991) (“When a trial transcript is not designated a s part of the record on appeal, an appellate court cannot review the district court ’s factual findings and must accept them as correct.”). Even working from the record we have, it is clear t hat in the process of seeking to withdraw his guilty plea, Defendant chal lenged the factual basis of his conviction by contesting the quantity of drugs invo lved. Defendant cannot on the one hand claim that his conviction is factually inc orrect and on the other hand accept responsibility for his actions. See United States v. Salazar-Samaniega , 361- 9 -

F.2d 1271, 1280 (10th Cir.), cert . denied , 125 S. Ct. 180 (2004) (noting that “admission of the factual elements of guilt is cert ainly essential to a finding that a defendant accepted responsibility”). As a result, we hold that the district court’s decision to deny a two-level adjustment for accepta nce of responsibility was not clearly erroneous. III. Sentencing enhancement for possession of firear ms At sentencing, the district court applied a two-lev el enhancement under U.S.S.G. § 2D1.1(b)(1), which applies when the defe ndant possesses a dangerous weapon (including a firearm) during the offense. (Aplt. App. at 12.) This enhancement was based upon a statement in the PSR t hat “[t]he evidence in this case shows that two firearms, a .22 caliber Winches ter rifle and a .380 caliber handgun were found in the defendant’s bedroom durin g a search of his residence.” (Id. at 97.) During his plea colloquy, Defendant never admitte d to possessing or using a weapon. (See id. at 21-40.) In his appellate brief, Defendant argues that he is entitled to be resentenced in light of Blakely v. Washington , 124 S. Ct. 2531 (2004). Blakley held Washington’s sentencing scheme violated the Sixth A mendment because it permitted a judge to make factual findings that enh anced a defendant’s sentence beyond the sentence supported solely by the facts a dmitted by the defendant or found by a jury beyond a reasonable doubt. Id. at 2538. In United States v.3 Specifically, Defendant lodged three objections to the PSR regarding the

presence of firearms in his residence. (Aplt. App. at 110-11.) First, Defendant argued that the guns were not found in proximity to the drugs or in an area where at least part of the drug transaction occurred. (Id. at 110.) Second, Defendant asserted it was improbably that the guns were relat ed to the offense because they were unloaded. (Id. ) Finally, Defendant argued that the ammo magazines w ere also empty and therefore could not have been relate d to the offense. (Id. at 111.) - 10 - Booker , 125 S. Ct. 738 (2005), the Supreme Court extended the rule in Blakelyto federal sentences and held that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maxim um authorized by the facts established by a plea of guilty or a jury verdict m ust be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id

. at 765. To remedy this constitutional violation, the Court excised the statutory provisions making the federal sentencing guidelines mandatory. See id. at 764-65. It does not appear that Defendant raised a Sixth Am endment Booker/Blakely -type argument below. Rather, in his objections to the presentence report, Defendant merely challenged whether the fac ts contained in the PSR satisfied the requirements of U.S.S.G. § 2D1.1, notwhether the district court could make findings of fact without violating the C onstitution. 3 (Aplt. App. at 110-11.) Thus, our review is for plain error. Fed. R. Cri m. P. 52(b) (“A plain error that affects substantial rights may be consid ered even though it was not brought to the [district] court’s attention.”); see Booker , 125 S. Ct. at 769 (noting that plain error applies to Bookerclaims).- 11 -

Our analysis is guided by the familiar four-part pl ain-error analysis in United States v. Olano , 507 U.S. 725 (1993): “There must be [1] an error [2] that is plain and [3] that affect[s] substantial rights. ” Id . at 732. If so, then, [4] the appellate court has discretion to correct the errorif it “seriously affect[s] the fairness, integrity or public reputation of judicia l proceedings.” Id. ; see also United States v. Clifton , ___ F.3d ___, 2005 WL 941581, at *5 (10th Cir. Ap r. 25, 2005) (applying plain error analysis to a constitut ional Bookererror). A plain error is a clear or obvious legal error. S ee Olano , 507 U.S. at 732- 34. At the time the district court sentenced Defen dant, neither Bookernor Blakelyhad been decided. Nonetheless, “in a case such as this—where the law at the time of [sentencing] was settled and clearly co ntrary to the law at the time of appeal—it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States , 520 U.S. 461, 468 (1997). Here, there was a plain error because the district court enhanc ed Defendant’s sentence on the basis of a fact neither admitted by the defendant n or proven to a jury: the possession of a firearm during the commission of th e offense. Defendant has the burden of establishing that this plain error affected his substantial rights. See Olano , 507 U.S. at 734. This is done by showing that there is “a reasonable probability that, but for th e error claimed, the result of the proceeding would have been different. United State s v. Gonzalez-Huerta , 4034 Section 3553(a) requires sentencing courts to take account of factors such

as the “the nature and circumstances of the offense and the history and characteristics of the defendant”, 18 U.S.C. § 3553 (a)(1), the range suggested by the Guidelines, id. § 3553(a)(4), and the need for sentencing uniformi ty for defendants with similar criminal histories and foun d guilty of similar conduct, id. § 3553(a)(6).

- 12 - F.3d 727, 733 (10th Cir. 2005) (en banc) (citation omitted). We have recognized at least two ways in which a defendant can carry hi s burden under the third prong of the plain error test. First, if the defendant s hows a reasonable probability that a jury applying the reasonable doubt standard would not have found the same facts found by the court applying a preponderance o f the evidence standard, the error has affected his substantial rights. See Clifton , 2005 WL 941581, at *6. Second, a Bookererror may affect substantial rights if the defenda nt shows “a reasonable probability that, under the specific fac ts of his case as analyzed under the sentencing factors of 18 U.S.C. 3553(a), [4] the district court judge would reasonably impose a sentence outside the Guidelines range.” Clifton , 2005 WL 941581, at *6. Here we assume, without deciding, that Defendant ha s met his burden under this second approach. Given the fact that the dist rict court chose to sentence Defendant at the bottom of the enhanced guidelines range, there is at least a reasonable probability that it would have imposed ashorter sentence if it had not erroneously enhanced the Defendant’s sentence. See Clifton , 2005 WL 941581,- 13 -

at *7 (considering, interalia , the fact that district judge sentenced defendant at bottom of erroneous guideline range in finding thatthird prong of Olano was met). However, under the fourth Olano factor, we will only correct a plain error affecting substantial rights if that error “serious ly affect[s] the fairness, integrity or public reputation of judicial proceedings.” Ola no , 507 U.S. at 732. As noted above, the error in question here is of a constitut ional dimension, since the district court enhanced Defendant’s sentence on the basis of facts (other than prior convictions) not found by a jury beyond a reasonabl e doubt. As a result, we apply a “less rigid” plain error analysis. See Clifton , 2005 WL 941581, at *6. Evidence that would tend to support an exercise of our discretion under this standard might include, for example: (a) a sentence increased substantially based on a Bookererror; (b) a showing that the district court would likely impose a significan tly lighter sentence on remand; (c) a substantial lack of evidence to support the entire sentence the Guidelines required the district courtto impose; (d) a showing that objective consideration of the § 3553( a) factors warrants a departure from the sentence suggested by the Guidelines; or (e) other evidence peculiar to the defendant that demonstrates a complete breakdown in the sentencing process. United States v. Dowlin , ___ F.3d ___, 2005 WL 1155882, at *18 (10th Cir. May 17, 2005) (citations omitted). But even under this relaxed standard, we are unable to conclude that the error in this case satisfies the fourth prong of Ol ano . While the error enhanced Defendant’s sentence, we cannot say that the enhanc ement was “substantial.”- 14 -

Here, the district court’s Bookererror caused a two-point increase in Defendant’s offense level. While this is by no means an insign ificant error, it is not so substantial as to satisfy the fourth Olano prong. Cf. United States v. Dazey , ___ F.3d ___, 2005 WL 846227 (10th Cir. Apr. 13, 2005) (finding fourth prong of Olano met where Bookererror led to a sizable 20 level enhancement). And although Defendant was sentenced at the bottom of t he erroneous guidelines range, this fact alone does not necessarily mean th at the district court would impose a “significantly” lighter sentence on remand . Furthermore, Defendant has not pointed to anything in the record which might i ndicate that the firearms seized during the search of his residence (and used to enh ance his sentence) were not actually his. Thus, there is nothing to suggest a lack of evidence supporting the guidelines sentence. Finally, we see nothing parti cularly unique on the facts of this case that would implicate the factors laid outin 18 U.S.C. § 3553(a) or demonstrate “a complete breakdown in the sentencing process.” Dowlin , 2005 WL 1155882, at *18. Thus, although Defendant may have arguably demonstr ated a plain error that affects substantial rights, we will not exerci se our discretion to correct the error because it does not, in our view, “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Olano , 507 U.S. at 732.- 15 - CONCLUSION For the reasons stated above, we AFFIRM Defendant’s conviction and hold that it was not an abuse of discretion for the district court to deny Defendant’s motion to withdraw his guilty plea. We also AFFIRM Defendant’s

sentence. ENTERED FOR THE COURT

David M. Ebel Circuit Judge