* The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 2, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. VIRGIL TOM, also known as Virgil Christopher Tom, Defendant-Appellant. No. 04-4213 (D.C. No. 2:03-CR-1013-TC)

(D. Utah)

ORDER AND JUDGMENT *

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
Virgil Tom appeals his sentence for unlawful posses sion of a firearm by a convicted felon. 18 U.S.C. § 922(g). He argues th at his sentence was imposed in violation of United States v. Booker , 125 S.Ct. 738 (2005). Because any Booker error was harmless, we AFFIRM Tom’s sentence. Tom’s base offense level was dictated by U.S.S.G. § 2K2.1(a)(4), which2

establishes a base offense level of 20 for a violat ion of § 922(g) if the defendant has a previous felony conviction for either a crime of violence or a controlled substance offense. In an Attachment for Sentencing , Tom argued below that Blakely v. Washington , 124 S.Ct. 2531 (2004), forbade the court from usi ng his prior felony conviction to establish his base offen se level. The sentencing court, however, adopted a base offense level of 20, subtra cted three levels for acceptance of responsibility, and settled on an off ense level of 17. Due to an extensive history of violent and non-violent offens es, Tom faced a criminal history category of VI, which, when combined with a n offense level of 17, established a Guidelines range of 51-63 months. Tom’s counsel advocated for a sentence at the low e nd of the range, citing Tom’s status as a husband and father, his ongoing d rug rehabilitation efforts, and his thorough acceptance of responsibility. Complyi ng with its plea agreement, the government also asked for a sentence at the low end of the range. Despite the uncontested request for a sentence of 51 months, th e court sentenced Tom at the top of the range to 63 months’ imprisonment. In support of its sentencing decision the court stated: “I recognize, just looki ng through this report several times, Mr. Tom is a very violent man. He’s done a lot of damage. And I think he needs some time to, if he can, get his life togethe r, to do it, and society needs some time away from him.”3

On appeal, Tom argues that his sentence violates Bo okerbecause he did not admit that he had a prior conviction for a qualifyi ng felony and thus the district court increased his sentence based on a fact that i t alone found, in contravention of Tom’s Sixth Amendment rights. Tom’s argument fo unders on our recent holding that “the ‘fact’ of prior convictions . . . need not be charged in an indictment and proven to a jury.” United States v. Moore , 401 F.3d 1220, 1223 (10th Cir. 2005). A district court does not violat e the Sixth Amendment when it increases a defendant’s punishment based on a findi ng of a prior conviction. We have held, however, that a district court commit s non-constitutional Bookererror “by applying the Guidelines in a mandatory f ashion, as opposed to a discretionary fashion, even though the resulting se ntence was calculated solely . . . upon the fact of a prior conviction.” United States v. Gonzalez-Huerta , 403 F.3d 727, 731-732 (10th Cir. 2005). Because To m raised Blakelyerror below, we review his sentence for harmless error. See United States v. Labastida-Segura , 396 F.3d 1140 (10th Cir. 2005). Under harmless e rror review, “any error . . . that does not affect substantial r ights must be disregarded.” Fed. R. Crim. P. 52(a). The district court’s error in using the Guidelines in a mandatory fashion does not violate Tom’s substantial rights. After r eceiving several arguments in mitigation and a request for a sentence at the bott om of the range, and hearing no4

objection from the government, the court proceeded to sentence Tom at the very top of the Guidelines range. The court cited as it s reasons Tom’s violent criminal history, his need for rehabilitation, and society’s need to be protected from him. If anything, the record reveals that the mandatory nature of the Guidelines constrained the court from imposing a higher senten ce. It is clear that, had the court operated as if the Guidelines were advisory o nly, Tom would not have received a more lenient sentence. We therefore con clude that the nonconstitutional Bookererror in this case is harmless. Accordingly, we AFFIRM the sentencing order entered by the district court.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge