United States v. Becenti , 134 F. App'x 256 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 8, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 04-2187
v. (D.C. No. CR-04-669-MV)
(New Mexico)
TYRONE WILLETO BECENTI,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, KELLY and TYMKOVICH, Circuit Judges.
Tyrone Willeto Becenti pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. 922(g)(1). He appeals his
sentence, claiming that it was improperly based on disputed factual allegations
and that it was unreasonable. We affirm.
The presentence report (PSR) generated in Mr. Becenti’s case included an
assertion that the gun underlying his illegal possession of a firearm had earlier
been stolen from its owner. This assertion was based on discovery performed by
*
This order and judgment is not binding precedent, except under the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 government, and not on any admissions made by Mr. Becenti. In assessing
Mr. Becenti’s offense level, the PSR recommended an enhancement of two levels
pursuant to U.S.S.G. § 2K2.1(b)(4) for possession of a stolen firearm. It
concluded that Mr. Becenti’s total offense level was 19, with a criminal history
category of III, for an applicable guideline range of 37 to 46 months.
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Mr. Becenti objected
to the PSR’s sentence recommendation on the basis that it violated his Sixth
Amendment right to a jury trial because the fact of the stolen gun was not charged
in his indictment, found by a jury, or admitted by him. He did not object to the
facts presented in the PSR, however. At sentencing, the district court adopted the
PSR’s factual findings and guidelines applications. It sentenced Mr. Becenti at
the bottom of the applicable guideline range, to 37 months imprisonment. The
court then pronounced an alternative sentence, stating that if the guidelines were
invalidated and it had complete sentencing discretion, it would impose exactly the
same sentence.
In Blakely, the Supreme Court applied the rule it expressed in Apprendi v.
New Jersey, 530 U.S. 466 (2000), to Washington state’s determinate sentencing
regime. See 124 S. Ct. at 2536. Recently, the Court extended Apprendi and
Blakely to the Federal Sentencing Guidelines, holding the Sixth Amendment
requires that “[a]ny fact (other than a prior conviction) which is necessary to
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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.” United States v. Booker, 125 S. Ct. 738, 756
(2005). 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. Id. at 756-57. As a
result, the guidelines are now advisory in all cases. Id. at 757.
The district court made a factual finding that Mr. Becenti possessed a gun
that was stolen. This finding was not admitted by Mr. Becenti nor established by a
jury, and thus constituted an error of constitutional magnitude. See United States
v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). Because Mr. Becenti preserved
this issue for appeal, we would normally review it for harmless error. See United
States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). However,
Mr. Becenti concedes, as he must, that the Sixth Amendment error here was
harmless because the district court imposed an alternative sentence setting forth its
position in the event the guidelines were invalidated and it had complete
sentencing discretion. We thus know how the district court would sentence Mr.
Becenti in a sentencing regime in which the guidelines are not mandatory, and we
are therefore not in the “zone of speculation and conjecture” regarding whether the
error affected the court’s selection of the sentence imposed. Id. at 1143 (error
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harmless if it “did not affect the district court’s selection of the sentence
imposed”).
Because the Sixth Amendment error was harmless, Mr. Becenti now
contends instead that he in effect disputed the underlying factual issue of whether
the gun found in his possession was stolen, by making an objection based on
Blakely. He then claims the district court violated F ED . R. C RIM . P. 32(i)(3) by
failing to hold an evidentiary hearing before ruling on a disputed factual issue.
We are not persuaded. “A defendant [must] raise alleged factual inaccuracies in a
presentence report before the district court in order to preserve the issue on
appeal.” United States v. Green, 175 F.3d 822, 837 (10th Cir. 1999) (internal
quotation omitted). Mr. Becenti’s objection addressed only the Sixth Amendment
issue, a legal argument that was not dependant on whether the gun was stolen. Mr.
Becenti was explicitly given opportunities to object to the facts presented in the
PSR, both before and during sentencing, but he failed to do so. Nor did he request
an evidentiary hearing. Because Mr. Becenti did not preserve the issue, we review
only for plain error. See United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir.
1991), overruled on other grounds by Stinson v. United States, 508 U.S. 36 (1993).
We have repeatedly held, however, that “factual disputes not brought to the
attention of the [trial] court do not rise to the level of plain error.” United States
v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998); Saucedo, 950 F.2d at 1518.
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Mr. Becenti also contends the district court’s sentence imposed under the
mandatory guidelines regime was unreasonable because the court failed to consider
the factors set forth in 18 U.S.C. § 3553(a), see Booker, 125 S. Ct. at 765-66, and
relied solely on the presentence report to resolve a disputed factual issue. We
recently held that sentences imposed pre-Booker are not reviewed for
reasonableness because we reserve this standard of review for discretionary
decisions. United States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005).
Furthermore, § 3553(a) was applicable before the Booker decision. Mr. Becenti
could have presented arguments about the statutory factors at sentencing but failed
to do so. As result, his argument fails.
For the aforementioned reasons, we AFFIRM Mr. Becenti’s sentence.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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