                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 17 2001
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 00-3298
 v.
                                             (D.C. No. 00-CR-10019-01-WEB)
                                                         (D. Kan.)
 MICHAEL D. HARDESTY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Michael Hardesty pleaded guilty to aiding and abetting another who

traveled in interstate commerce with intent to violate the drug laws. (Doc. 30.) In

his plea agreement, he admitted possessing for personal consumption at least five

grams of cocaine base. (Id. at 2.) He further agreed “not to request a sentence of

less than 60 months which is the statutory maximum sentence available,” although



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
the agreement said nothing about his ability to challenge sentencing

enhancements. (Id.)

      The Presentence Investigation Report (“PSR”) recommended applying the

two-level enhancement of Sentencing Guidelines § 2D1.1(b)(1) because Hardesty

possessed a dangerous weapon. (PSR, at 9.) With this enhancement, the

guidelines range was exactly 60 months’ imprisonment. (Id. at 16.) The PSR

recited the following facts to support the enhancement:

      On January 26, 2000, the police arrived at a house to respond to a call

about a disturbance with a weapon, apparently involving a female. (PSR at 5.)

They found Hardesty and another male and handcuffed both. (Id. at 6.) After

searching the house twice, officers found the woman hiding in a clothes dryer.

(Id.) She told the officers that Hardesty had forced his way into the house,

conducted drug transactions, and fired his gun the night before. (Id.) The woman

identified a knapsack in which the police found .357 ammunition as belonging to

Hardesty. (Id.) She also directed them to a china cabinet because Hardesty “on

other occasions kept the gun there.” (Id.) The officers found a .357 handgun in

plain view on the cabinet. (Id.) Another individual, who had run barefoot to a

nearby liquor store in the snow to make the initial call to the police, stated that

Hardesty had previously pulled a weapon and threatened to shoot him. (Id. at 6-7.)




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The officers found a second gun on the seat of a pickup truck of which Hardesty

had care and custody earlier in the day. (Id.)

      Hardesty objected to the enhancement for possessing a gun. (PSR at 19.) He

asserted that the .357 handgun belonged to the woman found in the dryer, who

owned the house. (Id.) He also disputed that the gun was in plain view, noting

that the police had searched the house twice for the woman before finding it. (Id.)

Without the enhancement, the guidelines range would be 57-60 months, although

Hardesty acknowledged that the change “may be insignificant since the parties are

not requesting a sentence above or below the 60 month maximum.” (Id. at 20.)

      At sentencing, neither party offered any evidence on the enhancement.

(Doc. 46, at 3.) In response to Hardesty’s objections, the district court stated, “It

doesn’t make any difference in the sentence I’m going to give. You’ve agreed on

the sentence.” (Id. at 5.) In its written order, the court stated,

      The court finds that the two-level increase for possession of a gun is
      appropriate in this case. The statements from eyewitnesses indicating
      the defendant had been in possession of the gun, that he had been
      conducting drug transactions at the residence before he was arrested,
      and that the knapsack containing ammunition and drugs belonged to
      him all persuade the court by a preponderance of the evidence that
      the defendant was in possession of the gun and that it related to his
      drug trafficking.
             The court notes that this objection would not affect the
      sentence in this case, because the court would impose the same
      sentence regardless of whether or not the two-point increase was
      applied.

(Doc. 34, at 1-2.)

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      On appeal, Hardesty continues to assert that the two-level enhancement was

improper. The district court had jurisdiction under 18 U.S.C. § 3231. We have

jurisdiction under 18 U.S.C. § 3742(a).

      We need not reach the merits of this appeal because any error would be

harmless. The district court unequivocally asserted that it would have imposed the

same sentence regardless of the enhancement. Other courts of appeal have found

that when a district court makes such a statement, it is not necessary to resolve

which of two guidelines ranges applies if the sentence imposed falls within both.

See United States v. Fairchild, 189 F.3d 769, 780 (8th Cir. 1999); United States v.

Howard, 179 F.3d 539, 545 (7th Cir. 1999); United States v. Thompson, 994 F.2d

864, 868 (D.C. Cir. 1993); United States v. Garrett, 984 F.2d 1402, 1416 (5th Cir.

1993); cf. United States v. Urbanek, 930 F.2d 1512, 1516 (10th Cir. 1991)

(“Unless the district court makes it clear during the sentencing proceeding that the

sentence would be the same under either of the applicable Guideline ranges, we

are compelled to remand for resentencing . . . .”). Similarly, we have held that

when the record supports one basis for the district court’s enhancement and we

are convinced the court would have imposed the same sentence regardless of the

status of the other bases, any error is harmless. See United States v. Anderson,

189 F.3d 1201, 1214 (10th Cir. 1999); cf. Williams v. United States, 503 U.S.

193, 203 (1992) (“[A] remand is appropriate unless the reviewing court


                                          -4-
concludes, on the record as a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the sentence imposed.”

(emphasis added)). We agree that in this case, a remand would not be warranted

even if there was error, given the district court’s statements and Hardesty’s

agreement not to seek a sentence of less than 60 months.

      We therefore AFFIRM the district court’s sentence.


                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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