United States v. Jordan , 148 F. App'x 751 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
September 28, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 04-8064
(D.C. No. 03-CR-00110-01D)
ANDREW JAY JORDAN,
(D. Wyo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Andrew Jay Jordan appeals his sentence for being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
He argues that the sentencing court violated his Sixth Amendment rights by
relying on judge-found facts when enhancing his sentencing level by two levels
for obstruction of justice. He also argues that the court below violated the
remedial holding in United States v. Booker, 125 S. Ct. 738 (2005), by applying
*
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judgment is not binding precedent, except under the doctrines of law of the case,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 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.
the Sentencing Guidelines in a mandatory fashion. Finally, he claims that the
district court committed clear error in finding that the enhancement was
appropriate. Because the actual sentence imposed was within the range to which
the defendant would have been subject absent the enhancement, the district court
did not commit constitutional Booker error. United States v. Yazzie, 407 F.3d
1139, 1144 (10th Cir. 2005). As such, the district court did not violate Jordan’s
Sixth Amendment rights. Any non-constitutional Booker error plaguing Jordan’s
sentence did not seriously affect the fairness, integrity, or public reputation of
judicial proceedings. The district court did not commit clear error when applying
the obstruction of justice enhancement. We AFFIRM Jordan’s sentence.
Jordan and his girlfriend sold a car to a man named David Martin in
exchange for a truck, a nine-millimeter pistol, a holster, and a box of ammunition.
Several days later, they sold the pistol to Ryan O’Daniels. It is undisputed that
Jordan physically possessed both the pistol and the ammunition.
Five days after this sale, Jordan filed a complaint with the Sheridan County,
Wyoming police department, claiming that O’Daniels failed to pay him in full for
the gun. After his trip to the police station, Jordan went back to O’Daniels and
reacquired the pistol. Having conducted a background check, the police
discovered that Jordan was a twice-convicted felon and charged him with being a
felon in possession of a firearm and being a felon in possession of ammunition.
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Jordan pleaded guilty to both counts.
At the sentencing hearing, Martin testified that Jordan had come to talk to
him several weeks after the sale of the gun. During this conversation, Jordan
asked Martin to say that Jordan’s girlfriend had purchased the gun on her own and
that Jordan himself had never possessed the weapon. Jordan’s testimony did not
dispute this factual allegation. A psychologist testified on behalf of Jordan,
stating that Jordan may not have been able to understand the meaning of the word
“possession” due to a “borderline” verbal IQ.
Jordan faced a base sentencing level of 20 with a recommended two-level
reduction for acceptance of responsibility and a two-level enhancement for
obstruction of justice stemming from Jordan’s attempted manipulation of Martin.
The district court considered the testimonial evidence and concluded that the
adjustment for obstruction of justice was appropriate. The district court also
concluded that the two-level reduction for acceptance of responsibility was
appropriate. The result was a sentencing level of 20 with a criminal history
category IV. The district court sentenced him at the bottom of the range to 51
months in prison and three years of supervised release.
On appeal, Jordan argues that the district court violated his Sixth
Amendment rights by using judicially-found facts to enhance his sentence and
that it violated the remedial holding of Booker.
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These claims fail. A court may commit two types of Booker errors:
constitutional Booker error and non-constitutional Booker error. United States v.
Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005). Constitutional Booker
error occurs when a court errs “by relying upon judge-found facts, other than
those of prior convictions, to enhance a defendant’s sentence mandatorily.” Id.Non-constitutional Booker error occurs when a court applies “the Guidelines in a
mandatory fashion, as opposed to a discretionary fashion, even though the
resulting sentence was calculated solely upon facts that were admitted by the
defendant, found by the jury, or based upon the fact of a prior conviction.” Id. at
732.
In this case, the district court clearly engaged in fact-finding to enhance
Jordan’s sentence for obstruction of justice. The district court considered the
testimony of three witnesses and found by a preponderance of the evidence that
the adjustment was appropriate. However, the sentence the district court meted
out was 51 months. Had the district court not imposed the obstruction of justice
enhancement, Jordan would have been sentenced at Level 18 with a range of 41-
51 months. The actual sentence was, therefore, within the range that corresponds
to the defendant’s guideline offense level absent the enhancement.
We have ruled that there is no constitutional Booker error unless the actual
sentence was enhanced by judicial fact-finding. Yazzie, 407 F.3d at 1144.
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“Booker made clear that it is the actual sentence, not the sentencing range, that
must not be increased based upon judge-found facts in order to violate the Sixth
Amendment.” Id. Thus, the court below did not commit constitutional Booker
error.
The district court’s mandatory application of the Guidelines does, however,
constitute non-constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 732.
This error was not raised below, and, as such, it will be subject only to plain-error
review under the four-part test articulated in United States v. Olano, 507 U.S. 725(1993). This test asks (1) is there error; (2) is the error plain; (3) does it affect
substantial rights; and (4) does it seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Gonzalez-Huerta, 403 F.3d at 732.
Jordan cannot meet the fourth prong of this test because he cannot show that
the non-constitutional Booker error in this case seriously affects the fairness,
integrity, or public reputation of judicial proceedings. “[W]e will not notice a
non-constitutional error . . . unless it is both ‘particularly egregious’ and our
failure to notice the error would result in a ‘miscarriage of justice.’” Gonzalez-
Huerta, 403 F.3d at 736 (quoting United States v. Gilkey, 118 F.3d 702, 704 (10th
Cir. 1997)). Factors that might satisfy this prong include evidence that a sentence
was increased “substantially because of a Booker error,” a likelihood that the
district court would impose a “significantly lighter sentence on remand,” a lack of
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evidence supporting the sentence required by the Guidelines or “a showing that
consideration of the 18 U.S.C. § 3553(a) factors warrants a departure from the
sentence suggested by the Guidelines.” United States v. Thomas, 410 F. 3d 1235,
1249 (10th Cir. 2005). None of these factors are present here, nor is there
anything else in the record that suggests that the non-constitutional Booker error in
this case is particularly egregious. To the contrary, the record demonstrates that
the district court would impose the same sentence if the case were remanded.
Finally, Jordan claims the district court committed clear error by finding
obstruction of justice. Such factual findings are reversed only if “the district
court’s finding was without factual support in the record or we are left with the
definite and firm conviction that a mistake has been made.” United States v.
Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001) (internal quotation marks
omitted). There is factual support in the record to support the district court’s
decision and there is no evidence a mistake has been made.
Accordingly, we AFFIRM the sentencing order entered by the district court.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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