United States v. Ingram

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-6081
(W .D. Oklahoma)
CHARLES SHARIF INGRAM , (D.Ct. No. CR-04-95-1-R)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On M ay 19, 2004, Charles Sharif Ingram w as charged in a single count
indictment for being a felon in possession of a firearm in violation of 18 U.S.C.
*
This order and judgment is not binding precedent except under the doctrines of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.
§ 922(g)(1). On October 19, 2004, Ingram pled guilty to the indictment. There
was no plea agreement. A presentence report (PSR ) was prepared which
recommended Ingram’s guideline range should be increased by two levels
pursuant to USSG §2K2.1(b)(4) because the firearm possessed by Ingram w as
stolen. Ingram objected to the sentencing enhancement. On M arch 3, 2005, the
district court conducted a sentencing hearing at which the government presented
evidence to the judge that the firearm had been stolen. At the conclusion of the
hearing, the district court imposed the two-level enhancement under USSG
§2K2.1(b)(4) and sentenced Ingram to ninety-two months imprisonment. Ingram
appeals from the district court’s determination, arguing United States v. Booker,
543 U.S. 220 (2005), precluded the district court from enhancing his sentence
based on facts not presented to a jury and the government’s evidence failed to
adequately establish the gun was stolen. W e exercise jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291 and AFFIRM .
Booker error, either constitutional or non-constitutional, is predicated on
the district court’s treatment of the guidelines as mandatory. United States v.
Gonzalez-H uerta, 403 F.3d 727 (10th Cir.) (en banc), cert. denied, 126 S.Ct. 495(2005). See United States v. Lawrence, 405 F.3d 888, 907 (10th Cir.) (“[T]he
Supreme Court’s holding in Booker would not have prohibited the district court
from making the same factual findings and applying the same enhancements and
adjustments to [the defendant's] sentence as long as it did not apply the
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Guidelines in a mandatory fashion.”), cert. denied, 126 S.Ct. 468 (2005). After
Booker, “district courts are still required to consider Guideline ranges, which are
determined through application of the preponderance standard, just as they were
before. The only difference is that the court has latitude . . . to depart from the
resulting Guideline ranges.” United States v. M agallanez, 408 F.3d 672, 685
(10th Cir.) (citation omitted), cert. denied, 126 S.Ct. 468 (2005). “In this respect,
the prior Guidelines scheme is unchanged by the seeming revolution of Booker.”
Id. Accordingly, district courts still maintain the ability to depart downward or
upward from the sentencing guideline range, so long as the sentence imposed is
reasonable with regard to 18 U.S.C. § 3553(a). United States v. M ontgomery, 439
F.3d 1260, 1262 (10th Cir. 2006); see also United States v. Crawford, 407 F.3d
1174, 1179 (11th Cir. 2005) (“After it has made [the Sentencing Guidelines]
calculation, the district court may impose a more severe or more lenient sentence
as long as the sentence is reasonable.”).
Thus, when considering sentence enhancements imposed after Booker, we
still “review the district court's factual findings for clear error and questions of
law de novo.” U nited States v. M ozee, 405 F.3d 1082, 1088 (10th Cir.), cert.
denied, 126 S.Ct. 253 (2005). W e will not disturb a factual finding unless it has
no basis in the record. United States v. M artin, 163 F.3d 1212, 1217 (10th Cir.
1998). Additionally, when reviewing a district court’s decision to apply a
sentence enhancement, we view the evidence and inferences therefrom in the light
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most favorable to the district court’s determination. United States v. Brown, 314
F.3d 1216, 1222 (10th Cir. 2003).
To establish the firearm was stolen, the government called Special Agent
Karen Hess of the Bureau of Alcohol, Tobacco, Firearms and Explosives to
testify. Agent Hess testified that at the time of Ingram’s arrest, police dispatch
checked NCIC records and confirmed the gun was stolen based on a 2003
Oklahoma City Police crime report. She also testified that she personally
contacted the victim of the burglary who confirmed that a firearm matching the
brand, type and caliber of the gun possessed by Ingram w as stolen. Although the
victim could not recall the serial number of the gun, he did recall that he provided
the serial number of the gun to the police in a written list of property at the time
of the burglary. Viewing the evidence and inferences therefrom, we find the
district court’s determination has an adequate basis in the record and was not
clearly erroneous.
W e AFFIRM the judgment of the district court.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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