                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS January 2, 2007

                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court



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

          Plaintiff-Appellee
                                                       No. 04-4273
 v.                                          (D.C. No. 2:03-CR-178-02-DAK )
                                                          (Utah)
 IRV EN DOUGLA S ADAM S,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Irven Douglas Adams was charged with five counts of distribution of

methamphetamine in violation of 21 U.S.C. § 841(a)(1); one count of conspiracy

to distribute methamphetamine in violation of 21 U.S.C. § 846; one count of

possession of ephedrine and pseudoephedrine with intent to distribute in violation



      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R.
32.1 (eff. Jan. 1, 2007).
of 21 U.S.C. § 841(c)(2); nine counts of money laundering in violation of 18

U.S.C. § 1956(a)(1)(B)(I); and one count of conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(h). He appeals his conviction and the

district court’s imposition of a life sentence. W e affirm.

      Prior to trial, M r. Adams moved to sever two of the methamphetamine

distribution counts because he wished to testify regarding some of the charges but

not others. The district court denied the motion but indicated it would “fashion

instructions” and “limit cross” to ensure a “fair trial.” Rec., vol. III at 9. The

court later stated that cross-examination would be limited to those topics

“reasonably related” to the questions asked, and that “if [M r. Adams] goes broad

[the government is] entitled to go broad.” Rec., vol. XIV at 19.

      During M r. Adams’ trial, the Supreme Court decided Blakely v.

Washington, 542 U.S. 296, 313 (2004), holding that facts not admitted by

petitioner or found by a jury may not be used to establish a sentence above the

prescribed statutory maximum. Due to uncertainty as to Blakely’s impact on the

federal sentencing guidelines, both parties agreed to submit sentencing

enhancement determinations to the jury in the form of special verdicts. The form

included sentencing related questions the jury was required to answ er only if it

first found M r. Adams guilty of the accompanying crime. Specifically, the jury

was required to determine beyond a reasonable doubt whether a “dangerous

weapon w as possessed in connection with drug trafficking;” whether M r. Adams

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“w as an organizer or leader of a criminal activity that involved five or more

participants;” and the quantity of drugs involved. Rec., vol. I at 861. M r. Adams

did not object to the inclusion of these additional sentencing related questions on

the jury verdict form.

      The jury convicted M r. Adams on all counts and determined special

verdicts in the amount of drugs involved, that M r. Adams was a leader or

organizer of criminal activity, and that a dangerous w eapon was possessed in

connection with drug trafficking. The district court calculated M r. Adams’

sentencing guidelines range to be life in prison and imposed a life sentence. At

sentencing, however, the court stated “[i]f the guidelines are found to be

unconstitutional . . . the sentence would be 360 months or 30 years.” Rec., vol

XXI at 34.

      On appeal, M r. Adams argues he is entitled to a new trial because the

district court committed a structural error by combining guilt determinations and

sentencing enhancements in a single trial and verdict form, referring to this as

“Blakelyization.” He also asserts the court erred in denying his motion for

severance. Finally, he contends the court committed plain error by sentencing

him in a mandatory fashion and requests we apply the alternative sentence the

court provided.

      M r. Adams contends the “Blakelyization” of his trial, the submission of

guilt and enhancement questions to the jury in a single proceeding, constitutes a

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structural error warranting a new trial. Because M r. Adams did not object at trial

to the non-bifurcated proceeding, 1 we analyze this potential error under the four

prong plain error test. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (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.” Id. (citation and quotations omitted).

A “structural error,” is a defect affecting “the framew ork within which the trial

proceeds, rather than simply an error in the trial process itself.” Id. at 733-34.

W here this more serious type of error is at issue, the third prong of the plain error

test is relaxed, and structural errors “can be corrected regardless of their effect on

the outcome.” Id. at 733 (quoting United States v. Olano, 507 U.S. 725, 735

(1993)). Structural errors, however, are extremely rare. See Gonzalez- Huerta,

403 F.3d at 734 (“if the defendant had counsel and was tried by an impartial

adjudicator, there is a strong presumption that any other constitutional errors that

may have occurred are not structural errors” (quoting Neder v. United States, 527

U.S. 1, 8 (1999) (brackets omitted)).

      M r. Adams contends his argument that the introduction of evidence

pertaining to both guilt and sentencing enhancements in a non-bifurcated trial



      1
        Not only did M r. Adams not object, his counsel asserted that a Blakelyized
trial was to his tactical advantage. See Rec., vol. XV (“Court: Blakely was
decided during this trial.” M r. Adams’ counsel responded: “I told [M r. Adams]
that was probably the best thing going for him.”).

                                          -4-
qualifies as structural error is supported by the Court’s decision in United States

v. Booker, 543 U.S. 220 (2005), not to fashion a remedy reliant on such a trial

process. W hat M r. Adams fails to recognize, however, is that the Court eschewed

this remedy not because doing so would create widespread structural errors, but

because such a system would have undermined Congressional intent. Id. at 254.

Having the jury decide sentencing issues clearly does not constitute structural

error.

         M r. A dams has not met the third prong under the traditional plain error test.

The evidence proffered regarding M r. Adams’ sentencing issues – drug amounts,

whether he was a leader or organizer, the possession of a gun in connection with

drug trafficking – w ould have been admissible in a strictly guilt phase

determination in relation to his conspiracy and distribution charges. W e are thus

not persuaded that M r. Adams’ ability to present a defense was compromised, as

he asserts. Accordingly, even assuming M r. Adams satisfied the first two prongs,

he has failed to demonstrate prejudice. The “Blakelyization” of M r. Adams’ trial

was not plain error.

         M r. Adams also contends the district court erred in denying his motions to

sever. A court may “order separate trials of counts” where a unified trial

“appears to prejudice a defendant.” F ED . R .C RIM . P. 14(a). “W hether to grant

severance under Rule 14 rests within the discretion of the district court. . . .”

United States v. Johnson, 130 F.3d 1420, 1427 (10th Cir. 1997).         “The defendant

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bears a heavy burden of show ing real prejudice from the joinder of the two

counts.” United States v. M artin, 18 F.3d 1515, 1518 (10th Cir. 1994) (citations

and quotations omitted). To establish “real prejudice, the defendant must

demonstrate that the alleged prejudice he suffered outweighed the expense and

inconvenience of separate trials.” Id. (citation and quotations omitted). In this

case, dozens of witnesses testified. The extensive evidence presented by the

government would have been admissible against M r. Adams under Rule 404(b) to

show intent or plan regardless of severance. M oreover, presenting the same

extensive evidence and witnesses in two separate trials is a time-consuming,

inconvenient, and inefficient use of judicial resources.

      M r. Adams sought a severance because he wished to testify regarding a

limited number of counts while avoiding cross-examination in relation to the rest

of his charges. At trial, the district court limited cross-examination, requiring M r.

Adams “not be questioned about things [he] did not raise.” But M r. Adams

thereafter testified and “opened the door basically on everything on [his] direct,”

and therefore the government was given wide latitude in cross-examination. Rec.,

vol. XXI at 19. There is no prejudice to M r. Adams where his decision to testify

and the content he chose to discuss on direct became the basis for cross-

examination. Even if there were some prejudice to be found here, it would not

outweigh the cost of saddling the court, parties, and witnesses w ith separate trials

requiring presentation of repetitious evidence and testimony. The district court

                                          -6-
did not abuse its discretion in denying M r. A dams motions’ to sever.

      Finally, M r. Adams asserts his life sentence must be reversed in light of

Booker, which held judge-found facts employed to enhance a defendant’s

sentence beyond the guideline range violate the Sixth Amendment. To rectify this

constitutional infirmity, the Court fashioned a broad remedy, making the

guidelines advisory rather than mandatory in all cases. Booker, 543 U.S. at 245.

A district court’s failure to apply the guidelines as advisory in accordance with

Booker presents what we have termed a non-constitutional error. Gonzalez-

Huerta, 403 F.3d at 731-32. B ecause M r. Adams did not raise this issue below ,

his claim on appeal is subject to plain error review. See id. at 732. The first tw o

prongs of the plain error test are met here because the “mandatory application of

the Guidelines is error and that error is now plain.” United States v. Williams,

403 F.3d 1188, 1199-1200 (10th Cir. 2005). To satisfy the third prong of plain

error review, M r. Adams must show “a reasonable probability that, but for the

error claimed, the result of the proceeding would have been different.” Gonzalez-

Huerta, 403 F.3d at 733 (citation and quotation omitted). H e has done so here.

During sentencing, the district court noted its dissatisfaction with the mandatory

guidelines sentence of life imprisonment and expressed a preference to

incarcerate M r. A dams for a shorter term. See Rec., vol. XXI at 30 (“I think 360

months is long enough.”); id. at 31 (“if the guidelines go away” and sentence

length were to rest w ithin the discretion of the district court, a 360 month

                                          -7-
sentence would be “long enough.”). M r. Adams has shown that the sentence he

would have received under a non-binding guidelines regime differs from the

sentence he did receive.

      The fourth prong requires error that “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403

F.3d at 732 (citation and quotations omitted). W e do not automatically “conclude

that the fourth prong is met as a matter of course” where “the third prong is

satisfied.” Id. at 736. To satisfy the final prong of the plain error test, therefore,

M r. Adams must make a greater showing than simple prejudice as required by the

third prong. The fourth prong “is formidable, as we will only exercise our

discretion when an error is ‘particularly egregious’ and the failure to remand for

correction would produce a ‘miscarriage of justice.’” United States v. Trujillo-

Terrazas, 405 F.3d 814, 820 (10th Cir. 2005) (quotation omitted).

      W e found the fourth prong to be met in challenges to non-constitutional

Booker errors in Trujillo-Terrazas, 405 F.3d 814, and Williams, 403 F.3d 1188.

In Trujillo-Terrazas, 405 F.3d at 819, the district court applied a substantial

mandatory sentencing enhancement that failed to reflect the “relatively trivial”

prior criminal history upon which it was based. (M r. Trujillo-Terrazas received a

16-point enhancement for arson, a crime of violence, for flicking a lit match into

an automobile in frustration at his ex-girlfriend’s new love interest.) Id.

Although we remanded for resentencing there, we nevertheless expressed our

                                          -8-
discomfort with any notion of remanding in cases w here the “district court felt

particular sympathy for” the defendant but the objective application of the §

3553(a) factors did not warrant a lower sentence, as it did in Trujillo-Terrazas. In

such cases, a remand w ould be based upon the particular, subjective sympathies

of an individual judge, and a spate of remands on such a basis might have the

opposite effect of actually impugning “the fairness, integrity, and public

reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732. 2

          Here, M r. Adams has not presented any evidence that objective

consideration of § 3553(a) factors warrants a lesser sentence. To the contrary, at

sentencing the district court was “convinced [M r. A dams] w as a big drug dealer, ”

rec., vol. XXI at 30, and the court expressed no particular rationale for a shorter

sentence that might suggest a lesser sentence is warranted under § 3553(a). The




      2
        In United States v. Williams, 403 F.3d 1188 (10th Cir. 2005), the district
court stated that “the sentence I am about to impose is so grossly out of
proportion to the offense conduct here that it just smacks of something that
certainly isn’t justice . . . I think this punishment is gross; I think it’s immoral.”
Id. at 1198. The court expressed frustration that the mandatory guidelines failed
to permit the court to consider the circumstances of the offense. See Id. at 1199
(“[he] had a gun literally thrust at him, and he put it in his pocket, and he ends up
getting shot, and I wonder who the real victim in this case is.”). Applying the
plain error test on appeal, w e held the fourth prong had been met. Although we
did not expressly articulate the role of an objective § 3553(a) analysis, the district
court in William s was essentially requesting the discretion it now holds under §
3553(a)(1) to “consider the nature and circumstance of the offense” in imposing a
sentence. In William s, as in Trujillo-Terrazas, an objective consideration of the §
3553(a) factors, particularly § 3553(a)(1), supported a finding that the fourth
prong was met.

                                          -9-
court simply stated a general feeling that 30 years is a “long, long time.” Id. at

31. Prior to sentencing, M r. Adams sought a downward departure to reflect (a)

sentencing disparities between him and a co-defendant who reached a plea

agreement for a lower sentence (b) his vulnerability to abuse in prison because he

is a known informant, and (c) the government’s partial culpability because it set

up M r. Adams as an informant. Rec., vol. I at 943-48. None of these arguments

for a lesser sentence “present[] a compelling case that objective consideration of

the § 3553(a) factors warrants a departure, and perhaps a significant departure,”

as was the case in Trujillo-Terrazas, 405 F.3d at 821. W e decline to reverse M r.

Adam’s sentence based on plain error.

      Accordingly, we A FFIR M .

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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