                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 5, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-4083
          v.                                               (D. Utah)
 RICHARD DEE THOM AS, also                       (D.C. No. 2:05-CR-355-JEC)
 known as Fatzz,

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, 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.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.    Introduction

      Appellant Richard Dee Thomas was convicted of threatening a federal

official, in violation of 18 U.S.C. § 115(a)(1)(B) and (b)(4), and mailing

threatening communications, in violation of 18 U.S.C. § 876(c). The Presentence

Investigation Report (“PSR”) calculated a 100 to 125-month advisory guidelines

sentencing range. Thomas filed a written objection to the PSR, requesting an

adjustment to his offense level for acceptance of responsibility. He also filed a

sentencing memorandum and a motion seeking a downward departure. The court

sentenced Thomas to 100 months’ imprisonment, the low end of the advisory

guidelines range. Thomas then filed this appeal, arguing his sentence is

procedurally unreasonable because the district court failed to address the

nonfrivolous arguments he made at sentencing by reference to the factors set out

in 18 U.S.C. § 3553(a). See United States v. Sanchez-Juarez, 446 F.3d 1109,

1117 (10th C ir. 2006). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, w e

conclude the district court erred. W e nevertheless affirm Thomas’s sentence

because the district court’s plain error does not seriously affect the fairness,

integrity, or public reputation of judicial proceedings.

II.   Background

      Thomas was charged in a two-count indictment with threatening a United

States judge, in violation of 18 U.S.C. § 115(a)(1)(B) and (b)(4), and mailing a

threatening communication, in violation of 18 U.S.C. § 876(c). He was convicted

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of both counts after a jury trial. Thereafter, a United States Probation Officer

prepared a PSR which set Thomas’s base offense level at tw elve. See USSG

§ 2A6.1(a)(1). The PSR, however, concluded Thomas was a career offender and

it accordingly applied a total offense level of twenty-four and a criminal history

category of V I under U SSG § 4B1.1(b)(E). The PSR then calculated an advisory

guidelines sentencing range of 100 to 125 months.

      Thomas filed a w ritten objection to the PSR and a “M otion for Downward

Departure and Sentencing M emorandum” (the “M otion”). Although he was

convicted by a jury, Thomas’s written objection sought a three-level decrease in

his offense level for acceptance of responsibility. See id. § 3E1.1 cmt. n.2 (“In

rare situations a defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he exercises his constitutional

right to a trial.”). In the M otion, Thomas argued for a health-related departure

pursuant to USSG §§ 5H1.4 and 5K2.0; a diminished-capacity departure pursuant

to USSG § 5K2.13; and a departure pursuant to USSG § 5K2.0 based on his

susceptibility to abuse in prison. Thomas also argued for a variance from the

advisory guidelines, relying on many of the same bases. See United States v.

Booker, 543 U.S. 220, 260-61 (2005); 18 U.S.C. § 3553(a). Further, he asserted it

was relevant to the district court’s analysis of the factors set forth in 18 U.S.C.

§ 3553(a) that he (1) committed the instant offense out of frustration over the

dismissal of a complaint he had filed in federal court, (2) had no apparent means

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of carrying out the threat, and (3) belongs to an age group w ith low recidivism

rates. He argued a reasonable sentence would be closer to the sentencing

guideline range calculated without the application of the career offender

provisions.

       At the sentencing hearing, the district court denied Thomas’s request for a

downward departure, rejected his argument that he was entitled to a reduction in

his offense level for acceptance of responsibility, 1 and sentenced Thomas to 100

months’ imprisonment. W hen it imposed the sentence, the court made no

reference to the § 3553(a) factors or Thomas’s arguments supporting his request

for a variance from the advisory guidelines range.

III.   Discussion

       This court reviews Thomas’ sentence for reasonableness. Booker, 543 U.S.

at 260-61. “Reasonableness has both procedural and substantive components.”

United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006). In this case, Thomas

challenges the procedural reasonableness of his sentence, arguing the district

court failed to adequately state on the record, with specific reference to the

§ 3553(a) factors, its reasons for rejecting his request for a sentence outside the

advisory guidelines range. Because Thomas did not bring this alleged procedural

       1
       Thomas asserts he did not request a reduction in his sentence based on
acceptance of responsibility and labels the district court’s discussion of the issue
“curious.” A review of the record, however, reveals his written objection to the
PSR is premised solely on a request for a three-level decrease based on
acceptance of responsibility.

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error to the attention of the district court at the sentencing hearing, we review for

plain error. 2 United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007). “Plain error occurs w hen there is (i) error, (ii) that is plain, which (iii)

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

or public reputation of judicial proceedings.” Id.

      “[W]here a defendant has raised a nonfrivolous argument that the § 3553(a)

factors warrant a below-Guidelines sentence and has expressly requested such a

sentence, we must be able to discern from the record that the sentencing judge did

not rest on the guidelines alone, but considered whether the guidelines sentence

actually conforms, in the circumstances, to the statutory factors.” Sanchez-

Juarez, 446 F.3d at 1117 (quotation and alterations omitted). Admittedly, the

district court is not required to explicitly reference each of the § 3553(a) factors

or respond to every argument made by the defendant in support of his request for

a variance. Nevertheless, when the court imposes a sentence w ithin the advisory

guidelines range, it must provide “a general statement of the reasons for the

imposition of the particular sentence.” Ruiz-Terrazas, 477 F.3d at 1199

(quotation omitted). A sentence is procedurally unreasonable if “(i) there [is] no

indication by the district court that it had considered the Section 3553(a) factors,




      2
        Thomas’s argument that he preserved the issue for appeal by questioning
the district court on the status of his motion for a downward departure is
unavailing.

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and (ii) we [are] otherwise unable ourselves to discern a clear explanation of the

sentence in the record.” Id. at 1202 (quotations omitted). After reviewing the

appellate record, we conclude the first two prongs of the plain error test have

been met here.

      Before imposing Thomas’s sentence, the district court did not mention any

of the § 3553(a) factors or even reference § 3553(a). Neither did the court

respond on the record to any of the nonfrivolous arguments made by Thomas in

support of his request for a sentencing variance or provide any explanation of

how it arrived at the sentence imposed. Accordingly, there is no basis upon

which w e can determine w hether the district court actually weighed Thomas’s

arguments in light of § 3553(a). The lack of an adequate explanation by the

district court is error because it has left us in the “zone of appellate speculation.”

Sanchez-Juarez, 446 F.3d at 1116 (quotation omitted). Further, the error is plain

because it is “clear or obvious under current law.” United States v. Brown, 316

F.3d 1151, 1158 (10th Cir. 2003) (quotation omitted).

      It is Thomas’s burden to prove the district court’s error affected his

substantial rights. Id. at 1158. He must also show the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. at 1161.

Thomas argues the district court’s failure to provide any explanation of how it

arrived at his sentence affects his substantial rights because it prevents this court

from conducting a meaningful review of the substantive reasonableness of his

                                           -6-
sentence. W e do not address this question because even assuming the error

affected Thomas’ substantial rights, we conclude he has failed to show it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Cotton, 535 U.S. 625, 632-33 (2002).

      Thomas asserts the failure to provide reasons for imposing a particular

sentence “could be reasonably construed as treating the G uidelines as mandatory

in direct violation of Booker and the right to a jury determination of the facts”

and argues this undermines the fairness, integrity, or public reputation of judicial

proceedings. W hat Thomas fails to appreciate, however, is that even if the

district court committed Booker error, the court’s error is non-constitutional in

nature. See United States v. Gonzales-Huerta, 403 F.3d 727, 731-32 (10th Cir.

2005) (en banc) (explaining the difference between constitutional and non-

constitutional Booker error). The facts used to calculate the advisory guidelines

range w ithin which Thomas was sentenced were either admitted by Thomas,

found by the jury, or involved the fact of a prior conviction. 3 Thus, the Sixth

Amendment is not implicated. See id at 732; see also United States v. M oore,

401 F.3d 1220, 1223-24 (10th Cir. 2005).




      3
       Although the base offense level for the crime of conviction was twelve, the
PSR applied a total offense level of twenty-four and a criminal history category of
VI solely because Thomas was a career offender. See USSG § 4B1.1(b).

                                           -7-
      Even assuming the district court applied the Guidelines mandatorily

thereby committing non-constitutional Booker error, we will not notice such error

“unless it is both particularly egregious and our failure to notice [it] would result

in a miscarriage of justice.” United States v. Yazzie, 407 F.3d 1139, 1146 (10th

Cir. 2005) (en banc); see also U nited States v. W illiams, 431 F.3d 1234, 1240

(10th Cir. 2005) (“[I]n most cases involving non-constitutional Booker error the

defendant will be unable to satisfy the final [plain error] prong.”). Thomas has

not satisfied his burden of showing a miscarriage of justice. He argues the error

has effectively deprived him of the right to appeal his sentence but does not

direct us to any record evidence indicating the district court relied on

impermissible factors or imposed a sentence that was “anything but fair and

reasonable.” United States v. Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir.

2005). To the contrary, the record shows Thomas, like a myriad of other criminal

defendants, received a sentence at the bottom of a guidelines range which was

properly calculated without any Sixth Amendment violation. Thomas has failed

to show that a miscarriage of justice would result if we fail to notice the error,

and thus has failed to show the instant error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.




                                          -8-
IV.   Conclusion

      B ecause Thomas cannot satisfy the fourth prong of the plain error test, w e

decline to notice the district court’s error. The sentence imposed by the district

court is affirmed.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




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