                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           July 21, 2005
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

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

          Plaintiff - Appellee,                            No. 03-4190
                                                            (D. Utah)
 v.                                                (D.Ct. No. 2:01-CR -507-DS)

 ROBERT SCOTT NOVOSEL, also
 known as Bob Novosel, also known as
 Joe Novosel, also known as Bob
 Novosell,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before BR ISC OE, O’BRIEN, Circuit Judges, and H EA TO N, District Judge. **




      This panel granted appellant’s M otion to Stay M andate and Permit

Supplemental briefing on February 11, 2005, and to file instanter the pleading

received from appellant titled “Petition for Rehearing or Supplemental Pleading.”

Appellee was granted leave to file a response. After examining the briefs and

      *
          This order and judgment is not binding precedent except under the doctrines of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.


      **
         The Honorable Joe Heaton, United States District Judge for the Western District
of Oklahoma, sitting by designation.
appellate record, this panel has determined unanimously that oral argument would

not materially assist the determination of the supplemental briefing in 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.

      Pursuant to a plea agreement, on September 11, 2002, Novosel pled guilty

to possession of a chemical (red phosphorus) used to manufacture a controlled

substance (methamphetamine) and possession with intent to distribute five grams

or more of actual methamphetamine. For its part, the Government agreed to

recommend a three-level downward adjustment for acceptance of responsibility

(USSG §3E1.1) and to file a motion pursuant to 18 U.S.C. § 3553(e) based on

Novosel’s substantial assistance in the prosecution of another individual.

Novosel was released pending sentencing, then absconded and failed to appear at

sentencing. He was apprehended four months later. Novosel eventually admitted

to absconding from pretrial release supervision and failing to appear for

sentencing. As a result of these admissions, the Government sought an

obstruction of justice adjustment (USSG §3C1.1) and argued Novosel was no

longer entitled to an acceptance of responsibility adjustment. It also informed the

court it was no longer willing to file a § 3553(e) motion. After increasing the

base offense level by two for obstruction of justice and denying an acceptance of

responsibility adjustment, the court sentenced Novosel to 110 months




                                         -2-
imprisonment. 1

       Novosel appealed, alleging the Government breached the plea agreement by

unilaterally declaring that his absconding violated the plea agreement, thereby

relieving the Government from its plea agreement obligations. W e affirmed.

United States v. Novosel, 2004 W L 1406319 (10th Cir. June 24, 2004)

(unpublished). Subsequently, Novosel requested rehearing en banc, which was

denied on February 2, 2005. Two days later, he filed a M otion to Stay M andate

and to Permit the Filing of a Petition for Rehearing or O ther Pleading in Order to

Raise a Booker Claim. On February 8, 2005, Novosel filed a supplemental

pleading, arguing his sentence violates the remedial holding in United States v.

Booker,-- U.S.--,125 S.Ct. 738 (2005). 2 On February 11, 2005, we granted

Novosel’s motion to stay the mandate and to file a supplemental pleading and

allowed the Government thirty days in which to respond to his supplemental

pleading. The Government filed its response on M arch 14, 2005. Exercising


       1
        Because Novosel was sentenced pursuant to the 2002 edition of the United States
Sentencing Guidelines Manual, all guideline citations refer to the 2002 edition, unless
noted otherwise.
       2
          In Booker, the Supreme Court extended its holding in Blakely v. Washington, 542
U.S. 296, 124 S.Ct. 2531 (2004), to the federal sentencing guidelines, holding that the
Sixth Amendment requires “[a]ny fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict [to] be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 125 S.Ct. at 756. To remedy the constitutional
infirmity of the guidelines, Booker invalidated their mandatory nature, requiring the
district court to consult them in an advisory fashion. Id. at 756-57 (severing and excising
18 U.S.C. §§ 3553(b)(1), 3742(e)).

                                            -3-
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                                     I. Discussion

      Novosel did not raise his Booker claim in the district court. 3 Thus, we

review for plain error. 4 United States v. Gonzalez-Huerta, 403 F.3d 727, 730

(10th Cir. 2005) (en banc). “Plain error occurs w hen 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. at 732. W e

have discretion to notice plain error. F ED . R. C RIM . P. 52(b). Here, Novosel

concedes he admitted to the quantity of drugs used to determine his base offense

level 5 and to the conduct supporting the obstruction of justice adjustment. 6


      3
         The only objection Novosel raised to the presentence report concerned the
probation officer’s calculation of the criminal history category as level V. He claimed
one of the convictions used to support this calculation should be stricken based on an
absence of proof. The district court agreed, lowering Novosel’s criminal history category
to level IV.
      4
         Novosel did not waive his right to appeal a sentence imposed in violation of the
law or based on an incorrect application of the guidelines.
      5
         At the change of plea hearing and in the plea agreement, Novosel admitted he
possessed with intent to distribute 9.3 grams (5.1 grams pure) of methamphetamine. The
indictment, to which he pled, specifically charged him with possession with intent to
distribute five grams or more of actual methamphetamine. Pursuant to the guidelines, he
was assigned a base offense level of 26, which is the base offense level for an offense
involving at least five grams but less than twenty grams of actual methamphetamine. See
USSG §2D1.1 (c)(7)(assigning a base offense level of 26 for “at least 5 G but less than 20
G of Methamphetamine (actual). . .”).
      6
       Initially, Novosel denied violating the conditions of his pretrial release.
Therefore, on June 5, 2003, an evidentiary hearing was held. At that hearing, Novosel
changed course, admitting to violating his pretrial release conditions by inter alia

                                           -4-
How ever, he claims his sentence still violates Booker because he was sentenced

pursuant to the mandatory guidelines. W e refer to this type of error as non-

constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 731-32. Applying the

plain error test, we conclude Novosel cannot satisfy its fourth prong.

      “Under the fourth prong of plain-error review , a court may exercise its

discretion to notice a forfeited error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 736. If “non-

constitutional Booker error” is involved, the standard for satisfying the fourth

prong is “demanding”— the defendant must show that the error is “particularly

egregious” and that our failure to notice it would result in a “miscarriage of

justice.” United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005)

(quotations omitted). W e have recognized that in most cases involving

non-constitutional Booker error the defendant will be unable to satisfy the fourth

prong. See United States v. Trujillo-Terrazaz, 405 F.3d 814, 820-21 (10th Cir.

2005) (recognizing the difficulty in establishing the fourth prong in cases

involving non-constitutional Booker error but finding that defendant had satisfied

the fourth prong). This case is no exception.

      Novosel received a sentence within the national norm as established by the

guidelines and there is no mitigating evidence supporting a lower sentence. See

Gonzalez-H uerta, 403 F.3d at 738-39 (considering in fourth prong analysis whether


absconding from pretrial supervision and failing to appear at sentencing.

                                             -5-
the defendant received a sentence within the guidelines/national norm and whether

the record supported a lower sentence). At sentencing, the judge, in denying an

acceptance of responsibility adjustment, noted: “I certainly was w illing to give him

acceptance previously, but the conduct following that is, I am just afraid, negated.

It’s tied my hands with respect to what I feel I can do for him.” (R. Vol. III at 4.)

He further acknowledged that he was initially disposed to helping Novosel but “his

disregard or disrespect for his counsel and for the Court and the system and law

enforcement, I just don’t know that I feel that I can give him consideration for

acceptance.” (Id. at 10.) These statements demonstrate it was not the mandatory

nature of the guidelines which restricted the judge from exercising any leniency, but

rather, Novosel’s own conduct, which included not only absconding from pretrial

release supervision but fleeing w hen officers sought to re-apprehend him. W hile w e

recognize that the judge sentenced Novosel at the low end of the guideline range

because he believed the sentence was “rather lengthy” (id.), there is no indication

the judge would impose a different sentence on remand, even under a purely

discretionary guideline scheme. Indeed, even on remand the district court would be

required to consult the guidelines, and Novosel’s behavior while on pretrial release

supervision would impact any consideration of 18 U.S.C. § 3553(a) 7 factors. See


      7
          Section 3553(a) states in relevant part:

      (a) Factors to be considered in imposing a sentence.--The court shall impose a
      sentence sufficient, but not greater than necessary, to comply with the purposes set
      forth in paragraph (2) of this subsection. The court, in determining the particular

                                                -6-
Booker, 125 S.Ct. at 764 (“W ithout the ‘mandatory’ provision, the [Sentencing

Reform Act of 1984] nonetheless requires judges to take account of the Guidelines

together w ith other sentencing goals” contained in 18 U.S.C. § 3553(a).).




                                       II. Conclusion

      Based on the above, we AFFIRM the judgment of the district court.



                                          Entered by the C ourt:


      sentence to be imposed, shall consider--

      (1) the nature and circumstances of the offense and the history and characteristics of
      the defendant;

      (2) the need for the sentence imposed--

             (A) to reflect the seriousness of the offense, to promote respect for the law, and
             to provide just punishment for the offense;

             (B) to afford adequate deterrence to criminal conduct;

             (C) to protect the public from further crimes of the defendant; and

             (D) to provide the defendant with needed educational or vocational training,
             medical care, or other correctional treatment in the most effective manner . .
             ..

                                              -7-
Terrence L. O ’Brien
United States Circuit Judge




  -8-
03-4190, United States v. Novosel

BRISCO E, Circuit Judge, dissenting:

      I previously dissented from the majority’s conclusions that (1) the

government did not unilaterally declare that Novosel had breached the plea

agreement and (2) the district court made findings that satisfied the requirements set

forth in United States v. Guzman, 318 F.3d 1191 (10th Cir. 2003), i.e., “to

determine w hether Novosel breached the agreement and, if so, whether to release

the government from its obligations and commitments.” United States v. Novosel,

102 Fed. Appx. 138, 145, 2004 W L 1406319, *6 (10th Cir. June 24, 2004) (Briscoe,

J., dissenting). Because I would reverse and remand for further proceedings to

determine whether either Novosel or the government breached the plea agreement

and what effect any such breach may have had, I would not reach the Booker

sentencing error now asserted by Novosel.
