                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 25, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                     No. 08-1490
                                              (D.C. No. 03-CR-00495-WDM-1)
 FREDERICK D. DEBERRY,                                   (D. Colo.)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.


      In this case we are asked to consider whether the Sixth Amendment is

violated by an upward departure from the sentencing guidelines based on facts

found by a judge by a preponderance of the evidence during a sentencing hearing

rather than found by a jury or admitted by the defendant. Following existing

Tenth Circuit precedent, we conclude that it does not.

                                    BACKGROUND

      While serving time at the U.S. Penitentiary in Florence, Colorado, the



      *
        This order and judgment is not binding precedent, except under the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.
Defendant, Frederick Deberry, took part in a violent altercation involving several

inmates. During this alteration, Mr. Deberry allegedly stabbed another inmate

five times in the back with an ice-pick-style-weapon, commonly known as a

shank. Following an investigation of the incident, Mr. Deberry, along with two

other inmates, was indicted for assault with intent to commit murder, assault

resulting in serious bodily injury, and possession of a weapon in prison. Mr.

Deberry, proceeding pro se, later reached a plea agreement with the government

whereby the government agreed to drop the assault charges in exchange for Mr.

Deberry’s plea of guilty to possession of a weapon in prison.

      Although Mr. Deberry agreed only to plead guilty to possession, the plea

agreement contained a description of the alleged assault. Upon Mr. Deberry’s

objection to this language, a handwritten note was added to the agreement and

initialed by the parties. The note provided that “[t]he defendant reserves the right

to contest and to disagree with any language indicating that he did anything other

than possess the prohibited object. The defendant also reserves the right to

contest the extent of any injuries [the victim] may have received.” (R. Vol. I,

Doc. 551 at 5.) At the change of plea hearing, the parties again clarified that Mr.

Deberry was admitting to possession of the weapon but “specifically disavow[ing]

any usage of that weapon in connection with any injuries [the victim] may or may

not have received.” (R. Vol. II, Doc. 605 at 17.)

      In preparation for Mr. Deberry’s sentencing, a pre-sentence report (“PSR”)

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was prepared that calculated Mr. Deberry’s offense level at eleven with a criminal

history category of IV, resulting in an advisory guideline range of eighteen to

twenty-four months in prison. However, the PSR recommended an upward

departure to a sentence of sixty months, the statutory maximum for possession,

based on the alleged assault and the extent of the resulting injuries. Mr. Deberry

objected to the recommended sentence and disputed the facts contained in the

PSR; in response the court scheduled an evidentiary hearing. 1

      During the hearing, the court heard testimony from four witnesses and

admitted several exhibits including an actual DVD recording of the altercation

and the shank allegedly used against the victim. After considering the evidence

and the parties’ arguments, the court found by a preponderance of the evidence

that the victim suffered a life-threatening injury and that Mr. Deberry

intentionally inflicted that injury on the victim. Based on these findings, the

court determined that an upward departure was warranted. After considering the

guidelines and the other 18 U.S.C. § 3553(a) factors, the court imposed a sentence

of fifty-four months.

                                  DISCUSSION

      On appeal, Mr. Deberry, citing Booker v. United States, 543 U.S. 220


      1
       Mr. Deberry also filed a motion to withdraw his guilty plea about this
same time. The court denied this motion at the evidentiary hearing following its
consideration of the relevant factors listed in United States v. Black, 201 F.3d
1296 (10th Cir. 2000).

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(2005), argues that the upward departure, based on the judge’s findings of fact,

violates his Sixth Amendment right to trial by jury. 2 More specifically, Mr.

Deberry relies on Justice Scalia’s concurrence from Rita v. United States, 551

U.S. 338 (2007), to argue that an upward departure that is within the statutory

maximum but that could not be upheld as reasonable based only on facts

contained in a defendant’s guilty plea violates the Sixth Amendment. “We review

constitutional challenges to a sentence de novo.” United States v. Angelos, 433

F.3d 738, 754 (10th Cir. 2006).

      Mr. Deberry’s arguments, admittedly, make for interesting academic



      2
         As a threshold matter, the government argues, citing to the plea bargain,
that Mr. Deberry has waived the right to bring this appeal. The specific provision
states, in relevant part:

      The defendant agrees and consents to have his sentence determined
      by application of the Sentencing Guidelines. The defendant waives
      any right to have facts that determine his offense level under the
      Guidelines alleged in an indictment and found by a jury. The
      defendant agrees and consents that facts that determine the offense
      level will be found by the Court, by a preponderance of the evidence,
      and that the Court may consider and use any reliable evidence,
      including hearsay and the facts outlined in the Presentence Report.

(R. Vol. I, Doc. 551 at 2.) We agree that under this agreement Mr. Deberry
would be precluded from challenging the court’s determination of his offense
level. However, that is not the case here; instead, the court found facts to justify
an upward departure from the recommended guideline range associated with Mr.
Deberry’s offense level. Mr. Deberry is not contesting his offense level and
corresponding guideline range, but rather the court’s departure from it. As such,
this “appeal [does not] fall[] within the scope of the waiver of appellate rights.”
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).

                                         -4-
discussion; however, “[w]e are bound by the precedent of prior panels absent en

banc reconsideration or a superceding contrary decision by the Supreme Court.”

In re Smith, 10 F.3d 723, 724 (10th Cir. 1993). In United States v. Redcorn, we

addressed this exact issue. 528 F.3d 727, 745 (10th Cir. 2008) (wording the issue

as whether “it is unconstitutional for the sentencing judge to rely upon a fact not

found by the jury or admitted by the defendant in determining a sentence, where

the sentence would not be reasonable in the absence of that fact”). In Redcorn,

we held that, under Booker, “‘when a trial judge exercises his discretion to select

a specific sentence within a defined [statutory] range, the defendant has no right

to a jury determination of the facts that the judge deems relevant.’” Id. at 746

(quoting Booker, 543 U.S. at 233) (alteration in original). Accordingly, the

district court in this case “was within its constitutional authority in finding the

facts that led to [a] discretionary sentence[] within [the] statutory range[]” of

sixty months. Id. As the Seventh Circuit recently noted, “[w]hile this [Sixth

Amendment] argument is not without its advocates, it is not the law.” United

States v. Ashquar, 582 F.3d 819, 825 (7th Cir. 2009) (citation omitted) (rejecting

as-applied Sixth Amendment challenges to a “higher sentence [within the

statutory maximum] based on judicially-found facts”); see also United States v.

Setser, 568 F.3d 482, 498 (5th Cir. 2009) (same); United States v. Conatser, 514

F.3d 508, 527-28 (6th Cir. 2008) (same).




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        For the foregoing reasons we AFFIRM the conviction and sentence in this

case.


                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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