                                                                            F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            August 9, 2005
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 04-1214
                                                 (D. Ct. No. 03-CR-519-B)
 RODNEY STONE,                                           (D. Colo.)

               Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McWILLIAMS, and HARTZ, Circuit
Judges.


      Defendant-Appellant Rodney Stone seeks remand for resentencing in light

of United States v. Booker , 543 U.S. —, 125 S. Ct. 738 (2005). Both parties

agree that our review is limited to plain error in this instance. We take

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and, because Mr.

Stone does not satisfy plain-error review, AFFIRM.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                               I. BACKGROUND

      A jury found Mr. Stone guilty of counterfeiting United States currency in

violation of 18 U.S.C. § 471. At sentencing, the District Court determined that

Mr. Stone had a base offense level of 6, see U.S. Sentencing Guidelines Manual

§ 2B1.1 (2002) (“U.S.S.G.”), and a criminal history category of VI. Mr. Stone

did not contest his criminal history category.

      The court made numerous findings of fact, which given the mandatory

nature of the sentencing scheme then in place, enhanced the offense level to 22.

In particular, the court enhanced 6 levels for the amount of the loss, U.S.S.G.

§§ 2B5.1(b)(1)(B), 2B5.1(b)(1)(D); 4 levels for being an organizer and a leader,

U.S.S.G. § 3B1.1(a); 2 levels for employing his minor niece and nephews to

commit the offense, U.S.S.G. § 3B1.4; and 4 levels because the offense involved

50 or more victims, U.S.S.G. § 2B1.1(b)(2)(A). Mr. Stone objected to the factual

bases for these enhancements, stating only that the amount of loss and number of

victims were merely speculative and that the minors and adults freely chose to be

involved in the counterfeiting venture. He did not argue that the court’s findings

of fact were made in violation of the Sixth Amendment.

      As a result of these enhancements, the District Court found that Mr.

Stone’s sentencing range was 84–105 months’ imprisonment. See U.S.S.G.

Chap. 5 Pt. A. The court then sentenced Mr. Stone to 105 months’ incarceration


                                        -2-
followed by 3 years’ probation, the highest sentence in the applicable range. A

timely appeal was made. The sole argument on appeal is that Mr. Stone is

entitled to a remand for resentencing in light of Booker.

                                 II. DISCUSSION

      Our Booker analysis is affected by whether we face constitutional or non-

constitutional Booker error. See United States v. Gonzalez-Huerta, 403 F.3d 727,

729 (10th Cir. 2005) (en banc) (discussing the two types of Booker error). Here,

the base offense level yielded a sentencing range of 12–18 months’ incarceration

and the enhanced range yields a sentencing range of 84–105 months. Because

Mr. Stone was sentenced to a term longer than he would have been sentenced to

absent judicial factfinding, we face a constitutional Booker error. Id.

      Before the District Court, Mr. Stone contested the sufficiency of the

evidence supporting the judge’s findings of fact. This Court has recently held

that a sufficiency-of-the-evidence argument does not preserve a constitutional

Booker challenge on appeal.    United States v. Dazey, 403 F.3d 1147, 1173–74

(10th Cir. 2005). Therefore, we review only for plain error.    Id. at 1174.

      “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.” Gonzalez-Huerta, 403

F.3d at 732 (quotation marks omitted). Because we face constitutional Booker


                                         -3-
error here, we apply this test less rigidly than in the non-constitutional context.

Dazey, 403 F.3d at 1174. In light of Booker , there can be no doubt that Mr.

Stone’s 105-month sentence was erroneously imposed and plainly so.       See id. at

1174–75. Nonetheless, we cannot remand for resentencing unless Mr. Stone

meets his burden to satisfy both the third and fourth prongs of plain-error review

as well. Id. at 1174–75, 1178.

      The third prong of plain-error review asks “whether the constitutional error

in [the Defendant’s] case affects his substantial rights.” Id. at 1173. To affect

Mr. Stone’s substantial rights, “the error must have been prejudicial: It must have

affected the outcome of the district court proceedings.” United States v. Olano,

507 U.S. 725, 734 (1993). Mr. Stone bears the burden of making this showing.

Gonzalez-Huerta, 403 F.3d at 729. To meet this burden, Mr. Stone must show “‘a

reasonable probability that, but for the error claimed, the result of the proceeding

would have been different.’” Id. (quoting United States v. Dominguez Benitez,

542 U.S. 74, 124 S.Ct. 2333, 2339 (2004)). Mr. Stone does not satisfy this

standard.

      Mr. Stone has two ways to show that his substantial rights are affected in a

constitutional Booker error case. See Dazey , 403 F.3d at 1175. First, he can

establish that his substantial rights have been affected by “show[ing] a reasonable

probability that a jury applying a reasonable doubt standard would not have found


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the same material facts that a judge found by a preponderance of the evidence.”

Id. To conduct this inquiry, we review the evidence submitted at the sentencing

hearing and the bases for objections the defendant made to the facts on which the

sentence was predicated.    Id. In Dazey , the defendant met this standard by

“strenuously contest[ing] the factual basis for the sentencing enhancements [by]

presenting [countervailing] evidence” that allowed us to “conclude [that] there is

a reasonable probability that a jury evaluating the evidence presented at trial

would not determine, beyond a reasonable doubt,” that the factual predicates for

the sentencing enhancements were proven.         Id. at 1177.

      This method of satisfying the third prong of plain-error review is not open

in this case because Mr. Stone did not present any countervailing evidence to any

of the factual bases for his various enhancements. Rather, he merely asserted that

the government’s evidence was speculative and that his niece and nephews and

the other adult participants joined the counterfeiting scheme of their own free

will. This meager evidentiary record distinguishes this case from   Dazey .

Moreover, “[t]he plethora of evidence supporting the district court’s factual

findings strongly suggests that these findings were correct.” United States v.

Riccardi, 405 F.3d 852, 875 (10th Cir. 2005) (finding third prong not met); see

also United States v. Ambort, 405 F.3d 1109, 1120 (10th Cir. 2005) (same).

Indeed, the testimony of Secret Service Agent Virgil Reichle, several local police


                                           -5-
officers, and numerous retail employees fully supports the District Court’s factual

findings on all four enhancements. As such, there is not a reasonable probability

that a jury, applying the beyond-a-reasonable-doubt standard, would have found

different sentencing facts.

      Second, Mr. Stone can show that his substantial rights have been affected

“by demonstrating a reasonable probability that, under the specific facts of his

case as analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the district

court judge would reasonably impose a sentence outside the Guidelines range.”

Dazey, 403 F.3d at 1175 (note omitted). This can be demonstrated when the

district court states that the defendant’s conduct, based on this particular record,

did not warrant the minimum Guidelines sentence.      Id.

      Nothing in the record in this case suggests that the District Court,

sentencing post-Booker under a discretionary system, would have imposed a

lesser sentence. In fact, the judge, who could have sentenced Mr. Stone anywhere

within the Guidelines range, gave him the maximum sentence within the range.

Given the magnitude of this sentence and the lack of record evidence illustrating

that a sentence diverging from the Guidelines would be justified under 18 U.S.C.

§ 3553(a), Mr. Stone fails to show that there is a reasonable probability that the

district court would have issued a lower sentence under a discretionary scheme.

See Riccardi, 405 F.3d at 876 (holding that sentence at the top of the Guidelines


                                         -6-
range supported the conclusion that the defendant’s substantial rights were not

violated); Ambort, 405 F.3d at 1121 (same); see also United States v. Lawrence,

405 F.3d 888, 907 (10th Cir. 2005) (noting that the district court’s imposition of a

sentence just two months above the bottom of the range supported the conclusion

that the defendant failed to show that his sentence would “likely change to a

significant degree if [the case] were returned to the district court for discretionary

resentencing” for purposes of meeting the fourth prong of plain-error review).

      In holding that Mr. Stone has not shown that his substantial rights have

been affected, we do not adopt an absolute rule that a sentence at the high-end of

the sentencing range, in every case, bars satisfaction of the third prong of plain-

error review. See United States v. Della Rose, 403 F.3d 891, 907 (7th Cir. 2005)

(“It has not escaped our attention that the district court sentenced Della Rose at

the high end of the Guidelines range, but that alone does not rule out the

possibility that the judge might have imposed a lesser sentence had he known that

the Guidelines did not bind him.”). Rather, we issue a more limited holding: In

the absence of compelling record evidence to the contrary, which we do not have

in this case, a defendant fails to meet his burden to satisfy the third prong of

plain-error review when sentenced at the upper end of the Guidelines range.

                                III. CONCLUSION

      This Booker sentencing challenge is subject to plain-error review. The


                                         -7-
District Court sentenced Mr. Stone to the highest possible term in the sentencing

range, and Mr. Stone fails to present evidence suggesting that a lower sentence

would have been given in a discretionary scheme. We therefore hold that Mr.

Stone does not satisfy the plain-error test and AFFIRM.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Chief Circuit Judge




                                       -8-
04-1214, U.S. v. Stone
HARTZ, J., concurring.

      Because I conclude that Mr. Stone has not satisfied the fourth prong of

plain-error review, I concur.
