                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      August 9, 2006

                                                                   Elisabeth A. Shumaker
                      UNITED STATES COURT O F APPEALS                  Clerk of Court

                                 TENTH CIRCUIT



 U N ITED STA TES of A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 04-4307
 v.
                                               (D.C. No. 2:03-CR-616-01-DAK )
                                                           (D. Utah)
 ANTHON Y DELLIS SPENCER,

          Defendant-Appellant.



                            OR D ER AND JUDGEM ENT *


Before E BE L, HOL LOW A Y and KELLY, Circuit Judges.




      In this direct criminal appeal, Defendant-Appellant Anthony Spencer

challenges his 360-month sentence for conspiring to distribute methamphetamine.

The district court, in imposing that sentence, comm itted constitutional Booker 1

error when it enhanced Spencer’s sentence based upon two factual findings made

by the court, rather than the jury. Spencer preserved this error for review.



      *
       This Order and Judgment is not binding precedent, except under the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.
      1
          United States v. Booker, 543 U.S. 220 (2005).
Nevertheless, because we conclude that the error was harmless, we AFFIRM his

sentence.

I.    B ACKGR OU N D

      Spencer pled guilty to conspiring to distribute m ethamphetamine, in

violation of 21 U.S.C. § 846. 2 This conviction stemmed from his selling an

undercover officer four ounces, or 78.6 grams, of methamphetamine. This

transaction was arranged by a government informant.

      At sentencing, the district court found, by a preponderance of the evidence,

that Spencer 1) had obstructed justice by threatening the informant and his wife;

and 2) w as a leader or organizer in this drug transaction. Based on these two

factual findings, the district court enhanced Spencer’s base offense level from

thirty-two to thirty-eight. 3 An offense level of thirty-eight, combined with

Spencer’s criminal history category of VI, produced a sentencing range of

between 360 months and life in prison. The district court imposed a sentence at

the bottom of that range, 360 months.



      2
         21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” And 21 U.S.C. § 841(a) makes it “unlawful
. . . to distribute . . . a controlled substance.” For a crime involving 78.6 grams of
methamphetamine, Spencer, who had a prior felony drug conviction, faced a
statutory maximum sentence of life imprisonment. See 21 U.S.C.
§ 841(b)(1)(A)(viii).
      3
          The district court applied the 2003 sentencing guidelines.

                                          -2-
      In light of Blakely v. W ashington, 542 U.S. 296 (2004), 4 the district court

also imposed an alternative sentence:

             The Court exercises its discretion under the Statute of
      Conviction, and should [B lakely] be found to impact the Federal
      Sentencing Guidelines, and they should be held to be unconstitutional,
      the sentence under the Statute of Conviction[] is the same sentence that
      I gave under the guideline; 360 months concurrently with the other two
      [sentences Spencer was already serving] and the 60 months of
      supervised release.

      Spencer appeals his sentence, arguing 1) the district court comm itted

constitutional Booker error by using court-found facts, made by a preponderance

of the evidence, to enhance Spencer’s sentence; and 2) the district court’s finding

the existence of these enhancements w as clear error. Having jurisdiction to

consider this appeal under 18 U .S.C. § 3742(a) and 28 U.S.C. § 1291, we

AFFIRM .

II.   STANDA RD O F REVIEW

      Even after Booker, this court continues to review the legal determinations

underlying a district court’s sentencing decision de novo and any factual findings

for clear error. See United States v. Zunie, 444 F.3d 1230, 1236 (10th Cir. 2006).




      4
       The district court sentenced Spencer on August 16, 2004, after the
Supreme Court had decided Blakely, but before the Court decided Booker in
January 2005.

                                        -3-
       B efore the district court, Spencer unsuccessfully objected to these two

enhancements, relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely. Those objections preserved Spencer’s constitutional Booker argument.

See Zunie, 444 F.3d at 1237 (holding that raising Blakely argument at sentencing

preserved Booker error for appeal); United States v. Glover, 413 F.3d 1206, 1208,

1210 (10th Cir. 2005) (assuming Apprendi objection preserved Booker error for

review ). This court, therefore, will review Spencer’s constitutional challenge to

his sentence de novo. See United States v. Stiger, 413 F.3d 1185, 1191 (10th

Cir.), cert. denied, 126 S. Ct. 775 (2005).

III.   ANALYSIS

       In Booker, the Supreme Court “held that mandatory application of the

[federal sentencing] Guidelines violates the Sixth Amendment when judge-found

facts, other than those of prior convictions, are employed to enhance a sentence.”

United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.) (en banc)

(citation, quotation, alteration omitted), cert. denied, 126 S. Ct. 495 (2005). In

the wake of Booker, then, there are two distinct errors that are possible:

constitutional Booker error, which involves the district court using factual

findings it made by a preponderance of the evidence to enhance the defendant’s

sentence; and non-constitutional Booker error, which involves the district court’s

applying the federal sentencing guidelines in a mandatory manner. See

Gonzalez-Huerta, 403 F.3d at 731-32 (citations omitted).

                                         -4-
      In this case, the district court committed constitutional Booker error when

it found, by a preponderance of the evidence, that Spencer 1) obstructed justice by

threatening the informant and his wife; and 2) was a leader or organizer of the

methamphetamine transaction; and then used these factual findings to enhance

Spencer’s sentence. 5 See United States v. Small, 423 F.3d 1164, 1190 (10th Cir.

2005), cert. denied, 126 S. Ct. 1180, 1377, 2050 (2006); see also United States v.

LaVallee, 439 F.3d 670, 707 (10th Cir. 2006) (recognizing that, if the sentencing

court would have applied the guidelines’ obstruction-of-justice enhancement to

increase defendant’s sentence mandatorily, it would amount to constitutional

Booker error); United States v. Lawrence, 405 F.3d 888, 905-06 (10th Cir.)

(holding that the district court’s finding that the defendant was an organizer or

leader of the offense and thereby enhancing defendant’s sentence was

constitutional Booker error), cert. denied, 126 S. Ct. 468 (2005). This error will

require resentencing unless the Government can show, beyond a reasonable doubt,

that the error was harmless, see United States v. W aldroop, 431 F.3d 736, 743

(10th Cir. 2005); that is, that the error did not affect Spencer’s “substantial

rights,” Fed. R. Crim. P. 52(a).

      [T]here are at least two ways that a defendant’s substantial rights may
      have been affected in cases of constitutional Booker error. First, a
      defendant’s substantial rights may be affected if a jury applying a

      5
       At sentencing, Spencer also challenged a third enhancement made pursuant
to U.S.S.G. § 2J1.7, which increased his offense level by three. But Spencer does
not reassert that objection on appeal.

                                         -5-
      reasonable doubt standard would not have found the same material facts
      that a judge found by a preponderance of the evidence. Second, a
      defendant’s substantial rights m ay also be affected if there is a
      reasonable probability that, under the specific facts of his case as
      analyzed under the sentencing factors of 18 U.S.C. § 3553(a) 6 , the
      district court would reasonably impose a sentence outside the
      Guidelines range.

Small, 423 F.3d at 1190 & n.15 (citation, quotation omitted) (footnote, emphasis

added).

      A.     W hether a jury w ould have found the same sentencing facts
             beyond a reasonable doubt that the district court found by a
             preponderance of the evidence.

      There is overwhelming evidence in the record from which a jury would

have found both that Spencer 1) threatened the informant and his wife; and 2) was

a leader or organizer of this drug transaction. See United States v . Riccardi, 405

F.3d 852, 875-76 (10th Cir.) (concluding constitutional Booker error was

harmless w here evidence supporting sentencing facts w as “overwhelming”), cert.

denied, 126 S. Ct. 299, 825 (2005).




      6
       18 U.S.C. § 3553(a) provides that, in imposing a sentence, the district
court should consider such things as the nature and circumstances of the offense;
the defendant’s history and characteristics; the need for the sentence to reflect the
seriousness of the offense; the need for deterrence, public protection and
rehabilitation; the kinds of sentences available as w ell as the applicable
sentencing guideline range; and the need to provide victims with restitution.
After Booker, the district court must consider these 18 U.S.C. § 3553(a)’s factors
in imposing a sentence. See United States v. M orales-Chaires, 430 F.3d 1124,
1128 (10th Cir. 2005).

                                         -6-
             1.    O bstruction-of-justice enhancement.

      The district court, pursuant to U.S.S.G. § 3C1.1, enhanced Spencer’s

offense level by two after finding that Spencer had obstructed justice. Section

3C1.1 provides that

      [i]f (A ) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of
      the investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to . . . the
      defendant’s offense of conviction . . . , increase the offense level by 2
      levels.

Obstruction of justice under § 3C1.1 includes “threatening, intimidating, or

otherwise unlawfully influencing a co-defendant [or] witness . . . , directly or

indirectly, or attempting to do so.” Id. application note 4(a).

      There was overwhelming evidence in the record that Spencer threatened

both the informant and his wife. The evidence presented at sentencing indicated

that the Government informant helped arrange Spencer’s methamphetamine sale

to an undercover officer. The informant was present when that transaction took

place. To keep Spencer from discovering the informant’s role, police arrested the

informant along with Spencer. At the police station, officers started to book the

informant before moving him to the jail’s “release area.” After the informant sat

in the release area for an hour, however, the guards for some reason decided not

to release him. Instead, they returned him to the jail and placed him in an area

where he and Spencer could see each other. W hile in that area, the informant saw



                                         -7-
Spencer make a telephone call. The informant’s wife testified that Spencer called

her from the jail and pretended to be a police officer asking about the informant’s

release; during that conversation Spencer eventually admitted who he was and

then threatened her by saying “[I am] going to get you guys.” After Spencer got

off the phone w ith the informant’s wife, Spencer told the informant that “‘I just

called your wife, and she told me everything.’” Spencer then threatened the

informant directly: “‘I’m going to get you fucker. I’m going to sic[] these

M exicans on you,’” referring to Spencer’s co-defendants Luis Perez and Isidro

Angel, w ho had also been involved in the methamphetamine sale.

      This evidence is more than sufficient for a jury to find, beyond a reasonable

doubt, that Spencer threatened the informant and his wife. Cf. United States v.

Bradford, 423 F.3d 1149, 1161-62 (10th Cir. 2005) (reviewing constitutional

Booker error for plain error and holding evidence was sufficient for a jury to find

beyond reasonable doubt that defendant had obstructed justice). And that finding

w ould support the tw o-level obstruction-of-justice enhancement. U.S.S.G.

§ 3C1.1, application note 4(a).

             2.    Leadership enhancement.

      The district court also increased Spencer’s offense level by four, pursuant

to U.S.S.G. § 3B1.1(a), after finding that he was a leader or organizer of the

methamphetamine sale. Section 3B1.1(a) specifically provides that “[i]f the

defendant was an organizer or leader of a criminal activity that involved five or

                                        -8-
more participants 7 or was otherwise extensive, increase [offense level] by 4

levels.” (Footnote added.) In applying this enhancement, “[t]he government does

not have to prove that defendant controlled five or more participants. Instead, it

must prove that five persons participated in the criminal venture, and that

Defendant exercised leadership control over at least one person.” United States v.

Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir. 1998) (footnote omitted)

(emphasis added).

      In distinguishing a leadership or organizational role from one of mere
      managem ent or supervision [for which a defendant should instead
      receive only a three-level enhancement under U .S.S.G. § 3B1.1(b)],
       . . . [f]actors the court should consider include the exercise of decision
      making authority, the nature of participation in the commission of the
      offense, the recruitment of accomplices, the claimed right to a larger
      share of the fruits of the crime, the degree of participation in planning
      or organizing the offense, the nature and scope of the illegal activity,
      and the degree of control and authority exercised over others. There
      can, of course, be more than one person who qualifies as a leader or an
      organizer of a criminal association or conspiracy.

U.S.S.G. § 3B1.1, application note 4. This four-level “enhancement is appropriate

if defendant was either a leader or an organizer.” United States v. Tagore, 158 F.3d

1124, 1131 (10th Cir. 1998).      “The gravamen of the enhancement is either the

exercise of control over other participants or the organization of others for the

purpose of carrying out the crime.” United States v. Spears, 197 F.3d 465, 469 (10th

Cir. 1999) (quotation omitted).



      7
        Spencer does not dispute that there were at least five individuals involved
in this drug transaction.

                                         -9-
         The evidence presented at sentencing overwhelmingly established that Spencer

played a leadership or organizational role in the drug transaction. The informant

introduced the undercover officer to Spencer, and both the informant and the

undercover officer negotiated w ith Spencer to purchase methamphetamine. Spencer

eventually agreed to meet the informant and the undercover officer to conduct the

transaction. Spencer arrived at this meeting without the drugs, but accompanied by

Troy Dalton and M andi Ignatowicz. W hen the informant and the undercover officer

refused to leave with Spencer and the others to retrieve the methamphetamine,

Spencer directed Dalton and Ignatowicz to get it. And it was Spencer who gave the

officer a sample of the methamphetamine so he could determine its quality. Spencer

also told the officer that Spencer had brought Ignatowicz with him so that the officer

could have sex with her w hen the group partied after concluding the drug sale.

         Dalton and Ignatowicz were gone fifteen minutes; when they returned they

were accompanied by Angel and Perez.              Spencer directed Perez to show the

undercover officer the drugs. W hen Perez did so, officers arrested everyone. The

undercover officer testified at sentencing that Spencer “w as orchestrating the entire

deal.”

         This evidence, then, was sufficient for a jury to have found beyond a

reasonable doubt that Spencer w as a leader or organizer of this drug transaction.

Cf. United States v. Apperson, 441 F.3d 1162, 1211-12 (10th Cir. 2006)

(reviewing Booker error for plain error and holding evidence was sufficient such

                                         - 10 -
that a jury would have found, beyond a reasonable doubt, that the defendant was a

manager or supervisor of the offense).

             3.     Conclusion.

      There was overwhelming evidence presented at sentencing from which a

jury would have found, beyond a reasonable doubt, the same sentencing facts the

district court found by a preponderance of the evidence. 8 Therefore, the trial

court’s constitutional Booker error— using those two facts to enhance Spencer’s

sentence— did not affect Spencer’s substantial rights.

      B.     W hether there is a reasonable probability that the district court,
             considering 18 U .S.C. § 3553(a)’s factors, w ould impose a
             different sentence outside the guideline range.

      The trial court’s constitutional Booker error could also affect Spencer’s

substantial rights if there is a reasonable probability that the court, had it

considered the sentencing factors set forth in 18 U.S.C. § 3553(a), would have



      8
       Because the evidence is sufficient for the jury to have found the same
sentencing facts beyond a reasonable doubt that the district court found by a
preponderance of the evidence, Spencer’s argument, that the district court’s
factual findings were clearly erroneous, is unavailing.

       Spencer further argues that, in making these factual findings, the district
court erred in relying on “unreliable hearsay.” Spencer appears to be referring to
the fact that, during sentencing, the prosecutor asserted that Spencer’s
co-defendants, in their own guilty plea and sentencing proceedings, had referred
to Spencer as their leader: “[T]he fact statements given by all of those
individuals, who all had no criminal history . . . , was that they were involved
because of M r. Spencer. They did what they did because M r. Spencer told them
to.” The district court, however, made clear that it was not relying on those
co-defendants’ statements to determine Spencer’s sentence.

                                         - 11 -
imposed a sentence outside the guideline range. See Small, 423 F.3d at 1190.

Ordinarily, this analysis requires us to consider what sentence the district court

would have imposed, if it had applied an appropriate post-Booker analysis. See

id. In light of the district court’s alternate sentence imposed in this case,

however, there is no need for us to engage in such speculation. W e know exactly

what sentence the district court would have imposed had the court not applied the

guidelines in a mandatory manner. See United States v. Corchado, 427 F.3d 815,

821 (10th Cir. 2005), cert. denied, 126 S. Ct. 1811 (2006); United States v.

Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir. 2005). The district court

would impose the same sentence. Therefore, we can be confident that there is no

reasonable probability that the district court, now treating the guidelines as

advisory and specifically considering § 3553(a)’s factors, would impose a

different sentence outside the guideline range. 9 Cf. United States v.

      9
        Although the district court, in imposing this alternate sentence, did not
expressly address each § 3553(a) factor, this court has never required a sentencing
court to do so. See United States v. Cornelio-Pena, 435 F.3d 1279, 1289 (10th
Cir.), cert. denied, 126 S. Ct. 2366 (2006); Corchado, 427 F.3d at 821; United
States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005), cert. denied, 126 S. Ct.
1089 (2006). In Corchado, for example, this court relied on the district court’s
alternate sentence, even though “the district court did not specify that it was
applying the sentencing methodology suggested in Booker–namely consultation of
the advisory Guidelines and the factors listed in 18 U.S.C. § 3553(a).” 427 F.3d
at 821. Nevertheless, because the district court “consulted the Guidelines and
adopted the findings in the PSR, which analyzed several of the factors set forth in
§ 3553(a),” this court was “confident that the district court would impose the
same sentence upon remand.” Id.; see also Cornelio-Pena, 435 F.3d at 1289
(relying on an alternate sentence where the district court, in imposing that
                                                                         (continued...)

                                         - 12 -
Cornelio-Pena, 435 F.3d 1279, 1289 (10th Cir.), cert. denied, 126 S. Ct. 2366

(2006) (relying on an alternate sentence to conclude that non-constitutional

Booker error was harmless); Corchado, 427 F.3d at 821 (same);

Serrano-D ominguez, 406 F.3d at 1223 (same).

       If, as here, “the sentencing error does not affect the sentence that would

have been imposed by the district court, it does not affect substantial rights.”

United States v. M arshall, 432 F.3d 1157, 1162 (10th Cir. 2005). Therefore, the

district court’s constitutional Booker error was harmless. See Zunie, 444 F.3d at

1237-38; W aldroop, 431 F.3d at 743.

IV .   C ON CLU SIO N

       For these reasons, we AFFIRM Spencer’s 360-month sentence.


                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge




       9
       (...continued)
sentence, considered the guidelines, as advisory, the PSR, defendant’s motion for
a downward departure, and several § 3553(a) factors specifically).

                                        - 13 -
