                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                    September 30, 2005
                               TENTH CIRCUIT
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                   No. 03-6225
                                                      (W.D. Okla.)
 RANDY TODD WILSON,                              (D.Ct. No. 03-CR-80-F)

       Defendant-Appellant.


           ORDER ON REMAND FROM THE SUPREME COURT
                     OF THE UNITED STATES


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      Appellant Randy Todd Wilson pled guilty to being a felon in possession of

a firearm pursuant to 18 U.S.C. § 922(g)(1). See United States v. Wilson, 95 Fed.

Appx. 970, 971 (10th Cir. Apr. 27, 2004) (unpublished op.) (Wilson I), vacated

and remanded, 125 S. Ct. 1029 (2005) (Wilson II). The district court sentenced

him to 188 months imprisonment after determining three prior burglary

convictions supported an Armed Career Criminal Act enhancement under both 18

U.S.C. § 924(e) and United States Sentencing Commission, Guidelines Manual

(U.S.S.G.) § 4B1.4(a), and finding Mr. Wilson’s use of a firearm during a crime
of violence sufficient to warrant an additional one-level enhancement under

§ 4B1.4(b)(3)(A). Wilson I at 971, 973.



      Mr. Wilson appealed his sentence, contesting the convictions supporting the

Armed Career Criminal Act enhancement and the additional enhancement for use

of a firearm during a crime of violence. Id. On April 27, 2004, we affirmed his

conviction and sentence. Id. at 971, 977. Thereafter, Mr. Wilson appealed to the

United States Supreme Court. During the pendency of his appeal, the Supreme

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

July 26, 2004, in apparently another writ of certiorari submitted to the Supreme

Court, Mr. Wilson again raised his objection to the enhancement for use of the

firearm during a crime of violence to the Supreme Court, “this time invoking

Blakely, and violation of his Fifth and Sixth Amendment rights.” Following the

issuance of Blakely, and during the pendency of Mr. Wilson’s appeal, the

Supreme Court decided United States v. Booker, 543 U.S. ____, 125 S. Ct. 738

(2005), and thereafter summarily vacated and remanded our decision in Mr.

Wilson’s case for further consideration in light of Booker. See Wilson II, 125 S.

Ct. at 1029. At our direction, the parties filed supplemental briefs on the

applicability of Booker and whether Mr. Wilson raised a Booker-type objection

before the district court for the purpose of reviewing his appeal on remand for


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either harmless or plain error. On remand, Mr. Wilson appeals only the

enhancement for use of a firearm during a crime of violence, and not the Armed

Career Criminal Act enhancement which was based on his prior convictions.

Thus, we do not address the latter, noting only that under United States v. Moore,

401 F.3d 1220 (10th Cir. 2005), the government is not required to charge in an

indictment or prove to a jury either: 1) the existence of prior convictions; or 2)

their classification as “violent felonies.” Id. at 1221, 1224-25 & n.2. As to the

enhancement which Mr. Wilson now raises in this appeal as well as an issue he

raises with respect to the mandatory application of the Sentencing Guidelines, we

reinstate our previous Order and Judgment and affirm for the following reasons.



                              I. Factual Background

      We first briefly recite those facts relevant for the purpose of disposing of

the Booker issues now raised on appeal. On March 15, 2003, Oklahoma City

police officers responded to a reported disturbance at Mr. Wilson’s ex-wife’s

home. Wilson I, 95 Fed. Appx. at 971. Her boyfriend, David Hanson, told the

officers Mr. Wilson pointed a firearm at him and then fled. Id. He described the

firearm as a small chrome and black semi-automatic handgun. Id. Two days

later, officers went to Mr. Wilson’s listed residence, where he directed them to a

floor safe containing a Smith & Wesson .40 caliber chrome and black semi-


                                         -3-
automatic pistol loaded with several rounds of ammunition. Id. at 972. Mr.

Wilson was arrested and charged with being a felon in possession of a firearm

pursuant to 18 U.S.C. § 922(g). Id. During a subsequent police interview, Mr.

Wilson admitted he got into an altercation with Mr. Hanson and told Mr. Hanson

he had a gun he would use unless he stopped messing with him. Id. However, he

denied having the gun with him during the altercation. Id.



      After Mr. Wilson pled guilty to being a felon in possession of a firearm

pursuant to 18 U.S.C. § 922(g)(1), the probation officer prepared a presentence

report recommending a one-level enhancement under U.S.S.G. § 4B1.4(b)(3)(A)

because he possessed the firearm in connection with a crime of violence when he

threatened Mr. Hanson with the gun. Id. Applying various other sentencing

factors, the probation officer calculated Mr. Wilson’s total offense level at 31 and

his criminal history category at VI, for a final Guidelines range of 188 to 235

months imprisonment. Id. Through counsel, Mr. Wilson generally objected to the

enhancement but did not state any specific objections or object to any of the facts

in the presentence report which supported the enhancement, other than to state

that “[c]ounsel is unaware of any alleged facts in support of this allegation.” Id.

At sentencing, counsel for Mr. Wilson again generally objected to the

enhancement, but when asked if the objection was factual and whether Mr.


                                         -4-
Wilson denied pointing the gun at Mr. Hanson, counsel responded that “the

burden of proof is on the Government to prove that.” Id. Through witness

testimony, the government offered into the record Mr. Hanson’s statement Mr.

Wilson pointed the gun at him, to which Mr. Wilson’s counsel did not object,

stating she believed it was admissible hearsay evidence. Id. at 971, 973.



      Based on this and other evidence, 1 the district court found the one-level

enhancement applied. Id. at 973. The district court then applied the bottom of

the sentencing range, for a sentence of 188 months imprisonment. Id. In

discussing the § 4B1.4(b)(3)(A) enhancement at issue here, the district court

stated:

            The Court has no trouble concluding that this is a case, again,
      given the defendant’s breathtakingly long record of serious criminal
      conduct, the Court has no trouble concluding that this case falls
      squarely with the intent of the provisions which provide for a very
      substantial enhancement of the term of incarceration in cases like this
      one, with individuals who have a record like the defendant’s record.
            ....
            There are no matters with respect to departure pending before the
      Court and the Court does not intend to depart on its own motion.

In imposing the sentence, the district court stated it sentenced Mr. Wilson:


      1
         As explained in our prior opinion, we did not consider the other evidence
the district court considered, which consisted of a police telephone interview and
statement of another witness who was at the scene of the incident and stated Mr.
Wilson pointed the gun at Mr. Hanson’s head. See Wilson I, 95 Fed. Appx. at
976.

                                         -5-
      at the bottom of the guideline range for the reason that it is the
      Court’s conclusion that even though enhancement is certainly well-
      justified in this case, the enhancement and the resulting offense level
      of 31, 188 months is a sufficient term of incarceration to serve the
      statutory purposes of sentencing.


      On initial appeal we determined, in part, that the reliability of Mr. Hanson’s

statement Mr. Wilson pointed a gun at him was supported by the fact his

description of the gun matched the characteristics of the gun actually found in Mr.

Wilson’s possession only two days later. Id. at 972, 976-77. After determining

the district court did not err in applying the § 4B1.4(b)(3)(A) enhancement, we

affirmed Mr. Wilson’s conviction and sentence. Id. at 977.



                                   II. Discussion

      On remand, Mr. Wilson appeals the § 4B1.4(b)(3)(A) enhancement for use

of a firearm during a crime of violence, asserting the intervening decisions in

Blakely and Booker require the facts supporting the enhancement to be found by a

jury and not a judge. While the government agrees the district court committed

an error in making a factual determination in support of the enhancement, it

argues the error must be reviewed for plain error, rather than harmless error,

given Mr. Wilson only raised a nonspecific factual objection to the enhancement

before the district court and not a Booker-type constitutional objection.



                                         -6-
         As the government admits, Mr. Wilson presents a Sixth Amendment

constitutional error based on judicially-found facts because the district court,

rather than a jury, found the facts supporting the § 4B1.4(b)(3)(A) enhancement

for use of a firearm during a crime of violence. See United States v. Gonzalez-

Huerta, 403 F.3d 727, 731 (10th Cir. 2005). However, because Mr. Wilson only

generally challenged the enhancement before the district court, and did not

challenge his enhancement on Booker-type constitutional grounds, we review it

for plain error. See United States v. Ambort, 405 F.3d 1109, 1118 (10th Cir.

2005).



         “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732.

Applying Booker, the first two factors in our plain error analysis are easily

resolved because the district court clearly committed an error when it determined

the facts supporting the enhancement, and the error is plain. Id.



         In determining the third factor on whether the error affected substantial

rights, the burden is on Mr. Wilson to show the error is prejudicial, i.e., the error

“‘must have affected the outcome of the district court proceedings.’” Ambort,


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405 F.3d at 1118 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). In

meeting this burden, he must show “‘a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different.’” Id.

(quotation marks and citations omitted).



      This circuit has announced at least two ways a defendant can meet this

burden, by either: 1) showing a reasonable probability a jury applying a

reasonable doubt standard would not have found the same material facts a judge

found by a preponderance of the evidence; or 2) demonstrating a reasonable

probability that, under the specific facts of the case as analyzed under the

sentencing factors in 18 U.S.C. § 3553(a), the district court would reasonably

impose a sentence outside the Guidelines range. See United States v. Dazey, 403

F.3d 1147, 1175 (10th Cir. 2005). Under the first scenario, the court reviews “the

evidence submitted at the sentencing hearing and the factual basis for any

objection” by the defendant. Id.



      In this case, Mr. Wilson fails to meet his burden under either scenario.

With respect to the first scenario, the government submitted the statement of Mr.

Hanson, to which Mr. Wilson did not object, establishing Mr. Wilson used the

gun during a crime of violence when he pointed it at him. While Mr. Wilson told


                                           -8-
police officers he did not have the gun with him at the time of the altercation,

thereafter, he did not raise this contention before the district court or otherwise

offer contrary evidence, other than to state “[c]ounsel is unaware of any alleged

facts in support of this allegation” and that “the burden of proof is on the

Government to prove that.” Wilson I, 95 Fed. Appx. at 972. Based on the

evidence submitted by the government and lack of any rebuttal evidence during

the district court proceeding, Mr. Wilson fails to show a reasonable probability a

jury evaluating the same evidence under a reasonable doubt standard would not

have found the same material facts as found by the district court. 2 Accordingly,


      2
         As previously noted, Mr. Wilson’s counsel did not object to the
government’s submission of Mr. Hanson’s statement into evidence at the
sentencing hearing, stating she believed it was admissible hearsay evidence. See
Wilson I, 95 Fed. Appx. at 973. On remand, Mr. Wilson asserts in the post-
Booker era the introduction of the police report containing Mr. Hanson’s
statement would be inadmissible hearsay for consideration by a jury for the
purpose of imposing an enhancement and, furthermore, that he did not have an
opportunity to confront and cross-examine Mr. Hanson at the sentencing hearing.
Following Booker, we have acknowledged sentencing courts may consider hearsay
evidence if it has sufficient indicia of reliability, while juries may not consider
this type of evidence. Dazey, 403 F.3d at 1177 n.7. We have also determined the
use of hearsay evidence itself does not violate a defendant’s substantial rights, so
that a defendant still has the burden to show the Sixth Amendment error affected
his substantial rights. Id. Having recognized the district court in this case erred
in making the factual determinations for the enhancement, it is Mr. Wilson’s
burden to show the error is prejudicial, i.e., the error “must have affected the
outcome of the district court proceedings,” and there is “a reasonable probability
that, but for the error claimed, the result of the proceeding would have been
different.” Ambort, 405 F.3d at 1118 (quotation marks and citations omitted).
Mr. Wilson has failed to explain how the result would differ if the jury had
                                                                         (continued...)

                                          -9-
he fails under the first scenario to establish his substantial rights were violated by

the district court’s enhancement of his offense level.



      With respect to the second scenario, we determine whether Mr. Wilson has

demonstrated a reasonable probability that, under the specific facts of his case as

analyzed under the sentencing factors in 18 U.S.C. § 3553(a), the district court

would reasonably impose a sentence outside the Guidelines range. See Dazey,

403 F.3d at 1175 & n.5. In so doing, we recognize the Supreme Court in Booker

held the Guidelines are now only advisory. 543 U.S. at ___, 125 S. Ct. at 768-69.

Thus, we determine whether there is a “‘reasonable probability that if the district

judge had not thought himself bound by the mandatory Guidelines to sentence in

accordance with ... judge-found, preponderance-of-the-evidence facts,’” he might

have determined a lower sentence should be imposed. See Ambort, 405 F.3d at

1120 (quoting Dazey, 403 F.3d at 1177). In Dazey, we explained a defendant

might make such a showing “if during sentencing the district court expressed its



      2
       (...continued)
reviewed the same evidence as the district court or if Mr. Hanson testified and
Mr. Wilson was afforded an opportunity to confront and cross-examine him with
respect to his incriminating statements. His cursory argument “the defects in his
sentencing altered the result of the proceeding” and that “[a] jury would not have
found Mr. Wilson guilty beyond a reasonable doubt of possessing a firearm in
connection with a violent offense based on a police report,” without more, is
inadequate to meet his burden.

                                         -10-
view that the defendant’s conduct, based on the record, did not warrant the

minimum Guidelines sentence.” 403 F.3d at 1175.



      In this case, nothing in the record indicates the district court would not

impose the contested enhancement under an advisory, rather than a mandatory,

sentencing scheme or that it preferred to give Mr. Wilson a sentence lower than

within the Guidelines range. Instead, it explained it sentenced Mr. Wilson at the

bottom of the Guidelines range “for the reason that it is the Court’s conclusion

that even though enhancement is certainly well-justified in this case, with the

enhancement and the resulting offense level of 31, 188 months is a sufficient term

of incarceration to serve the statutory purposes of sentencing.” The district court

also opined it had no trouble concluding Mr. Wilson’s case fell squarely within

“the intent of the provisions which provide for a very substantial enhancement,”

given his “breathtakingly long record of serious criminal conduct.” Finally, the

district court concluded it would not depart on its own motion. We consider a

district court’s refusal to grant a discretionary downward departure a further

indication of its satisfaction with a defendant’s sentence. See United States v.

Lawrence, 405 F.3d 888, 908 (10th Cir.), petition for cert. filed, (Aug. 30, 2005)

(No. 05-6306). Under these circumstances, Mr. Wilson has failed to establish a

reasonable probability the district court would have imposed a lower sentence if it


                                         -11-
had not been under pre-Booker mandatory constraints. Because Mr. Wilson fails

to meet his burden with respect to the third prong, it is unnecessary for us to

address the last prong, given all four prongs must be met for successful plain

error resolution.



                                   III. Conclusion

      For the reasons set forth above, we REINSTATE our previous Order and

Judgment and AFFIRM Mr. Wilson’s sentence.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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