                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      November 14, 2005
                                 TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-4121
          v.                                               D. Utah
 MICHAEL ANTHONY                            (D.C. No. 2:03-CR-00670-001-DAK)
 HAMBELTON, also known as
 Michael Chanthachack, also known as
 Anthony Chanthachack, also known
 as Michael Hambleton, also known as
 Anthony Hambleton,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, HARTZ, and TYMKOVICH, Circuit Judges.


      Michael Anthony Hambelton pleaded guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal he challenges his



      *
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
sentence. He alleges that the district court erred in applying a four-level

enhancement after finding that the crime of conviction was committed in

connection with another felony, and in denying credit for acceptance of

responsibility. He also alleges a Sixth Amendment violation because his sentence

was enhanced based on facts found by the district court. We affirm.

                                    Background

      On July 19, 2003, a shooting occurred at a party in Sandy, Utah.

Information obtained by the police, including an eyewitness identification, led

them to suspect that Mr. Hambelton, a convicted felon out on parole, was the

shooter. On July 29, 2003, police and probation officers conducted a search of

Mr. Hambelton’s home. A backpack containing three firearms was found next to

his bed. Ballistics tests showed that one of the guns had been used in the

shooting.

      Mr. Hambelton was charged and pleaded guilty to a one-count indictment

alleging that “[o]n or about July 19, 2003, . . .[Mr.] Hambelton, . . . having been

convicted of a crime punishable by imprisonment for more than one (1) year, did

knowingly possess in and affecting interstate commerce, firearms and

ammunition, to wit: three Smith & Wesson .45 caliber handguns and 6 rounds of

American .45 caliber ammunition; all in violation of 18 U.S.C. § 922(g)(1).” The

presentence report (PSR) suggested a base offense level of 20 and a criminal


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history category of III. It further suggested (1) a two-level increase because the

offense involved three or more firearms, (2) a two-level increase because the

firearms were stolen, and (3) a four-level increase because the firearms were used

in connection with another felony, specifically, the July 19, 2003, shooting

incident. The PSR also said that Mr. Hambelton should not be awarded a

reduction for acceptance of responsibility because he falsely denied being

involved in the shooting.

      Mr. Hambelton filed an objection to the PSR denying that he was the

shooter. He also argued that the offense of conviction (felon in possession)

should not be deemed to be “in connection with” the shooting because it occurred

10 days before the guns were discovered and he was arrested. At the sentencing

hearing Detective Jeffery Duval testified that a witness to the shooting incident,

James Taala, had told him that the shooter’s name was “Anthony,” that the

shooter lived near 3500 West and 5400 South, that the shooter was a member of a

local gang, and that the shooter’s brother had recently been arrested. From this

information Detective Duval was able to identify Mr. Hambelton as a suspect. A

second witness, Greg Love, identified Mr. Hambelton as the shooter from a photo

lineup. Finally, ballistics tests matched one of Mr. Hambelton’s guns to the

shooting. The district court rejected his objections, adopted the findings of the

PSR, and sentenced him to 97 months in prison.


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                                   DISCUSSION

      “We review a district court’s interpretation of the Sentencing Guidelines de

novo, and its factual findings for clear error.” United States v. Walters, 269 F.3d

1207, 1214 (10th Cir. 2001). Mr. Hambelton first argues that the district court

erred in finding that his illegal possession of firearms was “in connection with

another felony offense.” United States Sentencing Guidelines (USSG)

2K2.1(b)(5). He contends that USSG § 2K2.1(b)(5) should have a time limit, and

that the fact that he was not found with the guns until 10 days after the shooting

establishes that he did not possess the guns in connection with the shooting. This

argument ignores two undisputed facts. First, the indictment to which he pleaded

guilty specifically charged possession “[o]n or about July 19, 2003,” the date of

the shooting; and second, ballistics tests identified one of the guns found in his

home as the gun used in the shooting. In addition, an eyewitness picked

Mr. Hambelton out of a photo line-up, (although a second witness could not

identify him as the shooter). This evidence was more than sufficient for the

district court to find that the possession of the guns was in connection with the

shooting.

      Mr. Hambelton’s second argument is foreclosed by the same facts. He

argues that the district court erred in refusing to reduce his sentence for

acceptance of responsibility because he falsely denied relevant conduct—i.e., that


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he was the shooter. Although a defendant may be eligible for an acceptance-of-

responsibility reduction without admitting relevant conduct “beyond the offense

of conviction,” the court can refuse to grant the reduction when the defendant

“falsely denies, or frivolously contests, relevant conduct that the court determines

to be true . . . ;” USSG 3E1.1(a) cmt. n.1(a). Mr. Hambelton was identified as the

shooter by an eyewitness, the gun used in the shooting was found in his home, and

the indictment to which he pleaded guilty charged him with possession of the gun

on or about the date of the shooting. Yet he denied his involvement in the

shooting. Under these circumstances the district court’s conclusion that he acted

in a manner inconsistent with acceptance of responsibility was not clearly

erroneous. See United States v. Suitor, 253 F.3d 1206, 1211 (10th Cir. 2001)

(acceptance of responsibility denied when defendant testified untruthfully about

relevant conduct).

      Finally, Mr. Hambelton argues that we should remand for resentencing in

light of Blakely v. Washington, 542 U.S. 296 (2004), which was applied to the

Sentencing Guidelines in United States v. Booker, 125 S. Ct. 738 (2005). He

concedes that the issue was not raised below, so we review only for plain error.

“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




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reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (internal quotation marks omitted).

      Although Mr. Hambelton does not specifically identify any alleged error,

we presume that the alleged error was the mandatory application of the guidelines

and the court’s finding (1) that the firearms were stolen and (2) that the firearms

were used in connection with the July 19, 2003, shooting. (The sentence was also

enhanced because the offense involved three or more firearms. But this fact was

charged in the indictment and was therefore admitted by Mr. Hambelton in

pleading guilty to the indictment.)

      “A district court commits constitutional Booker error when it applies the

Guidelines in a mandatory fashion, makes factual findings (other than the fact of

prior convictions), and imposes a sentence above the maximum that would apply

in the absence of such findings.” United States v. Clark, 415 F.3d 1234, 1238

(10th Cir. 2005) (internal quotation marks and emphasis omitted). Constitutional

Booker error satisfies the first two prongs of the plain-error test. Id. at 1240. The

burden of satisfying the third prong is on the defendant. Id. He can meet this

burden by showing that the district court would impose a sentence outside the

applicable guidelines range if the case were remanded, or by showing a

reasonable probability that a jury, applying the beyond-a-reasonable-doubt

standard, would not have found the facts necessary to enhance the sentence. Id.


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If the defendant can satisfy the third prong, the fourth prong still requires him to

show that the error “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (internal quotation

marks omitted). Although we conduct this review less exactingly in cases of

constitutional Booker error, see United States v. Dazey, 403 F.3d. 1147, 1174

(10th Cir. 2005), it is still a “demanding standard” Gonzalez-Huerta, 403 F.3d at

737.

       Because the fourth prong imposes such a high burden, these cases are often

resolved at the fourth prong rather than the third. Id. at 736 (“We need not

determine whether Mr. Gonzalez-Huerta can satisfy this burden because even if

he were to meet the third prong, he must also satisfy the fourth prong to obtain

relief.”). “[S]entencing error meets the fourth prong of plain-error review only in

those rare cases in which core notions of justice are offended.” United States v.

Lawrence, 405 F.3d 888, 906 (10th Cir. 2005) (internal quotation marks omitted).

Mr. Hambelton has not even attempted to satisfy this burden. His briefing on this

issue consists of two short paragraphs that do no more than allege the error

without setting forth any facts or supporting argument. He does not argue that the

district court would impose a lower sentence on remand, and there is nothing in

the record to indicate that this might be the case. See id. at 907 (“Whether the

district court would simply reimpose the same sentence on remand, or whether


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instead the sentence would likely change to a significant degree if [the case] were

returned to the district court for discretionary resentencing, is one factor to

consider in determining whether the defendant can satisfy the fourth plain-error

prong.” (brackets in original, internal quotation marks omitted)). Additionally,

we note that although the PSR stated that the guns were stolen, Mr. Hambelton

did not object to the PSR on this basis, or place any argument or facts into the

record to contradict the PSR. Cf. Dazey, 403 F.3d at 1178 (concluding that the

fourth prong was met, in part, because the defendant “vigorously contested the

judge-found facts that enhanced his sentence”). The sole objection to the PSR

was that Mr. Hambelton was not the shooter at the July 19, 2003, incident. But,

as previously noted, there was compelling evidence that he was. Mr. Hambelton

has not demonstrated that the Booker error in any way “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Gonzales-

Huerta, 403 F.3d at 732 (internal quotation marks omitted). We therefore deny

relief on this ground.

      We AFFIRM the judgment of the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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