                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            August 24, 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                       No. 04-6282
                                                       (W.D. Oklahoma)
 KENNETH EARL ROY,                                 (D.Ct. No. CR-03-213-3-A)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, 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.

      Kenneth Earl Roy appeals his sentence imposed after pleading guilty to one

count of distributing approximately twenty grams of a mixture or substance


      *
          This order and judgment is not binding precedent except under the doctrines of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.
containing a detectable amount of cocaine base (crack) on March 11, 2003, in

violation of 21 U.S.C. § 841(a)(1). 1 The statute of conviction, in a case involving

five grams or more of crack, provides for a penalty of not less than five nor more

than forty years imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii). Roy was

sentenced to 188 months imprisonment. He contends his sentence violates the

rule announced in United States v. Booker, -- U.S. --, 125 S.Ct. 738, 746 (2005)

(invalidating the federal sentencing guidelines insofar as they are mandatory).

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we

REMAND for re-sentencing.

BACKGROUND

      In a presentence interview, Roy admitted to the probation officer who

prepared the Presentence Investigation Report (PIR) 2 that he sold twenty grams of

crack to a confidential informant, as charged in the count to which he pled guilty.

In his objections to the PIR, see F ED . R. C RIM . P. 32(f) (providing procedure for

objecting to PIR), Roy also admitted to trafficking in an additional twenty-four

grams of crack. He thus admitted to trafficking in a total of forty-four grams of

      1
         On October 22, 2003, Roy, along with others, was charged in a twelve-count
Indictment with various drug trafficking offenses involving the distribution of crack. He
was named in eleven counts. Pursuant to a plea agreement, he pled guilty to Count 3 of
the Indictment.
      2
        The PIR utilized the November 2003 edition of the United States Sentencing
Commission’s Guidelines Manual. Unless noted otherwise, all references to the
guidelines are to this edition.

                                           -2-
crack. The guidelines provide for a base offense level of 30 when the quantity of

crack involved in an offense exceeds thirty-five grams but is less than fifty grams.

See USSG §2D1.1(c)(5). However, relying on Drug Enforcement Agency (DEA)

investigative reports, the PIR calculated a base offense level of 34 based on Roy’s

relevant conduct. 3 See USSG §2D1.1(c)(3) (providing for a base offense level of

34 when offense involves at least 150 grams but less than 500 grams of crack).

According to the PIR, Roy’s relevant conduct included not only the forty-four

grams of crack to which he admitted but also 385.90 grams of crack in which he

trafficked with others at his place of business, for a total of 429.90 grams of


      3
        “Types and quantities of drugs not specified in the count of conviction may be
considered in determining the offense level. See §1B1.3(a)(2) (Relevant Conduct).”
USSG §2D1.1, comment. (n.12). USSG §1B1.3(a) provides in part:

      Unless otherwise specified, (i) the base offense level where the guideline
      specifies more than one base offense level . . . shall be determined on the
      basis of the following:

      (1)    (A)    all acts and omissions committed, aided, abetted, counseled,
                    commanded, induced, procured, or willfully caused by the
                    defendant . . .

             that occurred during the commission of the offense of conviction, in
             preparation for that offense, or in the course of attempting to avoid
             detection or responsibility for that offense;

      (2)    solely with respect to offenses of a character for which §3D1.2(d)
             would require grouping of multiple counts, all acts and omissions
             described in subdivision[] (1)(A) . . . above that were part of the
             same course of conduct or common scheme or plan as the offense of
             conviction[.]

                                           -3-
crack. 4

       The PIR also recommended a three level adjustment for acceptance of

responsibility. See USSG §3E1.1. With a total offense level of 31 and a criminal

history category of VI, Roy faced a guideline range of imprisonment of 188 to

235 months. By comparison, a total offense level of 27 (base offense level of 30

and a three level adjustment for acceptance of responsibility), together with a

criminal history category of VI, would have resulted in a guideline range of

imprisonment of 130 to 162 months.

       The PIR was completed on March 16, 2004. In his written, paragraph-by-

paragraph objections to the PIR, Roy vigorously challenged the relevant conduct

drug quantity calculation insofar as it exceeded the forty-four grams of crack to

which he admitted. Subsequently, on June 24, 2004, the United States Supreme

Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004)

(invalidating the application of Washington’s sentencing guidelines under the




       4
         The PIR detailed, in paragraphs 6 through 19, the factual allegations supporting
its relevant conduct calculation. We need not detail these factual allegations other than to
characterize them as tending to establish Roy was involved to some degree, depending
upon the transaction, in crack trafficking at his place of business. He contends he was, at
most, an innocent middleman whose benign actions enabled prospective purchasers to
connect with distributors. The Government, on the other hand, contends the factual
allegations in the PIR persuasively establish that Roy’s involvement in each of the
transactions comfortably fits within the definition of relevant conduct. See USSG
§1B1.3.

                                            -4-
Sixth Amendment). 5 On July 28, 2004, Roy was sentenced.

      At sentencing, Roy’s counsel, citing Blakely, objected to the PIR’s relevant

conduct drug quantity calculation: “My client . . . would just like me to announce

to the Court that he would like to preserve any objections under the Blakely

application that might have an effect on the federal sentencing guidelines.” (R.

Vol. 1 at 30.) The court clarified the objection:

      Now, as I interpret your modification of the specific objections [to
      the PIR], Mr. Campbell, it is since we have a situation where a
      judge-made determination of amounts of drugs for which the
      defendant is responsible is a determination that isn’t based upon the
      content of the charge to which he entered a plea of guilty, and as to
      which there’s been no jury finding, that these adjustments cannot
      properly be made under the general principles of the Blakely case. Is
      that fair?

(Id. at 32.) To this, Roy’s counsel answered in the affirmative. The court

overruled the objection and averred: “I don’t think it [the objection] could be any



      5
        In Blakely, the Court applied its decision in Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”) to invalidate the application of Washington’s
sentencing guidelines under the Sixth Amendment. In Blakely, the sentencing court
enhanced a standard sentence under these guidelines. The facts necessary to support the
enhancement were neither admitted by the defendant nor proven to a jury beyond a
reasonable doubt. Even though the enhanced sentence did not exceed the statutory ceiling
of imprisonment for the offense, the Court invalidated it. Blakely, 124 S.Ct. at 2538. In
doing so, the Court clarified that “the statutory maximum for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Id. at 2537 (quotation marks and emphasis
omitted).

                                           -5-
more thoroughly presented on the record for purposes of later review.” (Id.) The

court added: “But what am I going to do about the paragraph-by-paragraph

objections [in the PIR] about quantities and other people and relationships within

this group that engaged in the contraband enterprise?” (Id.) Roy’s counsel

responded that his client

      wanted me to inform the Court that other than preserving that
      [Blakely] objection, that he’s not going to take any stronger position
      on the objections than the preservation. And that, further, he does
      not want to take any action which would appear to vitiate his
      acceptance [of responsibility], and he wants the Court to know that
      he does accept [responsibility].

(Id. at 33). To this, the court responded: “Well, you know, it is true that a

defendant can come here even on a guilty plea and start fighting everything from

top to bottom and wind up without an acceptance-of-responsibility adjustment.

So that probably was a prudent decision.” (Id.)

      The court then remarked to Government counsel: “Well, that [Roy’s

decision not to again press his objections] leaves you without the necessity of

introducing any evidence, if I understand things correctly . . . .” (Id.) Neither

party presented evidence. 6 The court declined to consider an upward departure

based on the inadequacy of Roy’s criminal history category under USSG §4A1.3,



      6
         According to the Government, it was prepared to substantiate the PIR’s factual
allegations at sentencing through audio recordings, testimony of visual surveillance by
law enforcement officers and the testimony of a co-defendant.

                                           -6-
even though the PIR arguably provided grounds for an upward departure on this

basis. Furthermore, although the Government declined to move for a downward

departure for substantial assistance to authorities under USSG §5K1.1, it

informed the court Roy had cooperated with authorities and suggested the court

consider his cooperation in determining a sentence within the applicable guideline

range. Also, the court agreed with defense counsel that Roy was more likely a

user who supported his habit by drug trafficking than a significant distributor of

controlled substances. The court imposed a 188 month term of imprisonment, the

low end of the guideline range based on a total offense level of 31 and a criminal

history category of VI, as calculated in the PIR. This timely appeal followed.

DISCUSSION

      On January 12, 2005, the Supreme Court decided Booker, in which it

extended its ruling in Blakely to invalidate the federal sentencing guidelines

insofar as they were mandatory. 125 S.Ct. at 746. We apply both Blakely and

Booker to this appeal. See United States v. Clifton, 406 F.3d 1173, 1175 (10th

Cir. 2005) (“Blakely and Booker [apply] to all cases in which a defendant

properly raised an issue under either case.”).

      In Booker, the Court held that “[a]ny fact (other than a prior conviction)

which is necessary to 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


                                         -7-
defendant or proved to a jury beyond a reasonable doubt.” Id. at 756. The Court

concluded the guidelines would not offend the Constitution if advisory only. Id.

at 749-50. To this end, in the remedial portion of its opinion, the Court excised

those provisions mandating application of the guidelines. Id. at 756-57. The

Court indicated its decision was applicable to all cases, like this one, on direct

review. Id. at 769.

      Applying Booker, we have stated:

      there are two distinct types of error that a court sentencing prior to
      Booker could make. First, a court could err by relying upon
      judge-found facts, other than those of prior convictions, to enhance a
      defendant's sentence mandatorily. As Booker makes clear, the Sixth
      Amendment prohibits this practice. As a matter of convenience, we
      will refer to such an error as a constitutional Booker error. Second, a
      sentencing court could err by applying 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. While this type of sentence does not violate
      the Sixth Amendment, such a sentence is nonetheless impermissible
      because the Court severed the portion of the Sentencing Reform Act
      that required the mandatory application of the Guidelines. We will
      refer to this second type of error as a non-constitutional Booker error.

United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en

banc) (internal quotation marks and citations omitted). Irrespective of the type of

error involved, Booker does not necessitate a remand for resentencing in all

instances. Instead, “reviewing courts [are] to apply ordinary prudential doctrines,

determining, for example, whether the issue was raised below and whether it fails


                                          -8-
the plain-error test.” Booker, 125 S.Ct. at 769 (internal quotation marks omitted).

      Before we determine which standard of review applies, we must determine

whether there was error at all in Roy’s sentencing. Roy contends there was

constitutional Booker error in his sentence because the district court found the

facts necessary to support its relevant conduct drug quantity calculation. The

Government contends there was no constitutional Booker error in Roy’s

sentencing because he admitted to all of the facts recited in the PIR that supported

the relevant conduct determination utilized by the court. 7 Although the record is

opaque, we conclude Roy did not admit to the facts necessary to support the

court’s relevant conduct drug quantity calculation.

      The record is clear that prior to sentencing Roy emphatically contested the

factual allegations in the PIR supporting the PIR’s recommended relevant conduct

calculation of 429.90 grams of crack (insofar as it exceeded the forty-four grams

of crack to which he admitted). The Government contends Roy “withdrew his

objections to the relevant conduct paragraphs” at sentencing. (Appellee’s Br. at

11.) We do not agree for two reasons.

      First, the Government overstates the record. Roy’s counsel stated that



      7
         The Government adds that because Roy does not argue there was non-
constitutional Booker error in his sentence, we need not reach the question. Inasmuch as
our ruling on Roy’s constitutional Booker error claim is dispositive, we need not address
this contention.

                                           -9-
“other than preserving [the Blakely] objection . . . [Roy is] not going to take any

stronger position on the objections [in the PIR] . . . .” (R. Vol. 1 at 33) (emphasis

added).) We construe this statement as preserving not only a Blakely objection

but also the paragraph-by-paragraph objections Roy earlier interposed to the

PIR’s factual assertions concerning relevant conduct. To be sure, Roy was not

going to press his objections with any additional vigor at sentencing, for fear of

losing his acceptance of responsibility adjustment, a strategic move the court

agreed was prudent. But declining to re-state objections at sentencing, ad

seriatim, to facts alleged in the PIR is altogether different from admitting those

facts. Second, it is counter-intuitive to suppose that Roy was both preserving a

Blakely objection to the facts alleged in the PIR and, at the same time, admitting

those facts. Based on the foregoing, we conclude Roy did not admit to the facts

alleged in the PIR that supported the relevant conduct drug quantity calculation.

Without an admission to these facts and without a jury having found them beyond

a reasonable doubt, Roy’s sentencing was plagued with constitutional Booker

error.

         Having determined there was constitutional Booker error in Roy’s

sentencing, we now consider the appropriate standard of review. The Government

doubts Roy preserved an objection to judicial fact-finding at sentencing. We

disagree. Roy not only clearly stated his Blakely objection, but the district court


                                         -10-
took pains to encapsulate it sufficiently for appellate review. We therefore

conclude that our review of the constitutional Booker error in Roy’s sentencing is

for harmless error. See United States v. Windrix, 405 F.3d 1146, 1158 (10th Cir.

2005). See also United States v. Lang, 405 F.3d 1060, 1063-1064 (10th Cir.

2005) (raising Blakely objection at sentencing preserves harmless error review for

Booker error). Ordinarily, this means that “[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded.” F ED . R.

C RIM . P. 52(a). However, in the case of constitutional error, the Government

bears the burden to show that the error is harmless beyond a reasonable doubt.

See Lang, 405 F.3d at 1065.

      Our review for harmless error is complicated by the fact that the record is

unclear as to the process by which the district court decided to apply the PIR’s

calculation of relevant conduct drug quantity. At sentencing, the court “may

accept any undisputed portion of the presentence report as a finding of fact,” F ED .

R. C RIM . P. 32(i)(3)(A), or it “must - - for any disputed portion of the presentence

report or other controverted matter - - rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect sentencing, or

because the court will not consider the matter in sentencing[.]” F ED . R. C RIM . P.

32(i)(3)(B). We have already concluded that Roy did not admit to the factual

allegations of relevant conduct in the PIR. Therefore, Rule 32(i)(3)(A) does not


                                         -11-
apply. 8 On the other hand, the district court did not rule on the disputed facts

raised by Roy’s objections to the PIR, as required by Rule 32(i)(3)(B).

       We recognize that at the time of Roy’s sentencing, it was uncertain whether

Blakely applied to the federal sentencing guidelines. Consequently, the parties

and the court were operating in muddied waters. This, no doubt, contributed to

the apparent misunderstanding on the part of the court and the Government as to

whether Roy was withdrawing or preserving his objections to the PIR’s

allegations of relevant conduct. As a consequence, the district court made no

factual findings. On appeal, the Government in effect asks us to assume the

allegations of relevant conduct contained in the PIR are true for purposes of

determining harmlessness. This we are loath to do in a case involving

constitutional error.

       We also observe there is a significant difference between the guideline

range applicable to Roy based only on his admissions (130 to 162 months

imprisonment) and the guideline range applicable to him based on the PIR’s

calculations which were applied by the district court (188 to 235 months

imprisonment). See Lang, 405 F.3d at 1065 (finding constitutional Booker error


       8
         This is true even though the record suggests the district court may have treated
Roy’s decision not to restate his earlier objections as a withdrawal of his objections.
However, even if this is so, it does not alter our conclusion that Roy did not admit to the
factual allegations of relevant conduct in the PIR, which is key to our finding of
constitutional Booker error.

                                            -12-
was not harmless when sentences were increased based on facts not admitted by

defendants or found by a jury beyond a reasonable doubt). Furthermore, the court

sentenced at the low end of the guideline range, declined to consider an upward

departure and, no doubt, was influenced in its choice of a low sentence by the

Government’s indication that Roy had cooperated with authorities. Also, the

court agreed with defense counsel that Roy was more likely a user who supported

his habit by drug trafficking than a major distributor of controlled substances.

This record does little “to convince us beyond a reasonable doubt that the district

court would have imposed just as harsh a sentence in the absence of a mandatory

guideline regime.” Windrix, 405 F.3d at 1158. Compare United States v.

Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005) (finding non-

constitutional Booker error was not harmless and indicating “where [the sentence]

was already at the bottom of the guidelines range, to say that the district court

would have imposed the same sentence given the new legal landscape (even after

consulting the Sentencing Guidelines in an advisory capacity) places us in the

zone of speculation and conjecture . . . .”).

      The Government devotes little attention in its brief to an attempt to

convince us the constitutional Booker error in Roy’s sentencing was harmless

beyond a reasonable doubt. The nub of its argument is that “[i]t was not error for

the district court to accept the factual accuracy of the Presentence Report in


                                          -13-
determining relevant conduct.” (Appellee’s Br. at 20.) However, we have

already found Roy did not admit to the facts supporting the district court’s

adoption of the PIR relevant conduct drug quantity calculation. Therefore, we

conclude the Government has not met its burden of proving that the constitutional

Booker error in Roy’s sentencing was harmless.

CONCLUSION

      We REVERSE and REMAND this matter to the district court for

appropriate fact-finding and resentencing in accordance with Booker.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                        -14-
