                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          August 23, 2005
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 03-3136
          v.                                         District of Kansas
 ANDRE C. RHOINEY,                            (D.C. No. 02-CR-40014-01-RDR)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before BRISCOE, Circuit Judge, McWILLIAMS , Senior Circuit Judge, and
McCONNELL , Circuit Judge.



      Andre C. Rhoiney entered a conditional plea of guilty to one count of

possession with the intent to distribute five grams or more of a mixture containing

cocaine base. We affirmed the district court’s denial of his motion to suppress


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
evidence discovered during a traffic stop and we affirmed the district court’s

finding at sentencing that he was responsible for 35 grams of cocaine base.

United States v. Rhoiney, 94 Fed. Appx. 730 (10th Cir. 2004) (unpublished). The

United States Supreme Court vacated the original opinion and remanded the case

for reconsideration in light of United States v. Booker, 125 S.Ct. 738 (2005).

United States v. Rhoiney, 125 S.Ct. 1005 (2005). We reinstate all non-sentencing

portions of the prior opinion and consider the arguments made by the parties in

supplemental briefing. On reconsideration we AFFIRM Mr. Rhoiney’s sentence.

                                         I.

      On December 21, 2001, two members of the Topeka Police Department

pulled over the vehicle Mr. Rhoiney was driving. A search revealed 40 pills of

Ecstasy and 20 individually wrapped pieces of cocaine base. On January 3, 2003,

the defendant pleaded guilty to one count of possession with the intent to

distribute five grams or more of a mixture containing cocaine base. At his

sentencing on May 15, 2003, Mr. Rhoiney objected to the determination in the

presentence report that the crack cocaine recovered by the police weighed exactly

35.0 grams. Mr. Rhoiney presented testimony from an expert witness that

contested the DEA lab report stating that 2.8 grams of the substance was used in

analysis, which combined with the reserve weight of 32.2 grams, resulted in a net

weight of 35.0 grams. Mr. Rhoiney’s expert witness testified that, in his


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experience, not even as much as 0.5 grams would be used for analysis. On the

basis of this testimony, Mr. Rhoiney argued that his base offense level should be

28 rather than 30, because the Sentencing Guidelines require at least 35 grams of

a mixture containing cocaine base to authorize a base offense level of 30.

U.S.S.G. §§ 2D1.1(c)(5) & (c)(6) The government presented testimony from the

laboratory technician who weighed the drugs to explain that some of the weight

loss might have occurred during transfers of the substance or due to evaporation

of water in the substance.

      The district court found the testimony of the drug technician to be credible

and attributed 35.0 grams of a mixture containing cocaine base to Mr. Rhoiney.

The district court reduced the base offense level of 30 by three levels for

acceptance of responsibility for a final offense level of 27. This offense level,

combined with Mr. Rhoiney’s criminal history category of IV, supplied a

sentencing range of 100–125 months. The district court imposed a bottom range

sentence of 100 months. On appeal, Mr. Rhoiney challenged the district court’s

attribution of 35.0 grams of cocaine base to him and, on clear error review, we

affirmed the district court’s finding. See Rhoiney, 94 Fed. Appx. at 735.

                                         II.

      Mr. Rhoiney did not raise his Sixth Amendment challenge to his sentence

below, thus we review for plain error. See United States v. Gonzalez-Huerta, 403


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F.3d 727, 732 (10th Cir. 2005) (en banc). To demonstrate plain error Mr.

Rhoiney must show that the district court: (1) committed error, (2) that was plain,

(3) affected his substantial rights, and (4) the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings. United States v.

Cotton, 535 U.S. 625, 631–32 (2002).

      There are two types of Booker errors: constitutional error and non-

constitutional error. See Gonzalez-Huerta, 403 F.3d at 731–32. Constitutional

error occurs when a district court finds facts that mandatorily increase a

defendant’s sentence beyond the maximum sentence authorized by the facts

admitted by the defendant or proven to a jury beyond a reasonable doubt. See

Booker, 125 S.Ct. at 756. In his guilty plea Mr. Rhoiney admitted to possession

of 5 or more grams of cocaine. He argues that finding any amount beyond 5

grams would be a violation of Booker’s constitutional holding. This position,

however, ignores the statement in Booker that it is not a violation of the Sixth

Amendment to increase a sentence on the basis of facts “admitted by the

defendant.” Id. Mr. Rhoiney objected to the conclusion in the presentence report

that he possessed 35.0 grams of cocaine base. He contended that anomalies in the

testing process indicated that the total amount of cocaine base was slightly less

than that amount. Mr. Rhoiney argued:

      As stated in [the expert witness’s] report, following his weighing of
      the materials involved in this case including the controlled substance

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      and the various containers and his review of the DEA Chemical
      Analysis Report dated February 21, 2002, and the DEA Report of
      Drug Property Collected dated January 9, 2002, in his opinion the
      actual weight of the drugs seized was 32 grams.
             Therefore from the evidence presented the actual weight of the
      drugs seized was 34.74 or less with the resulting base offense level
      of 28. Deducting 3 points for acceptance of responsibility would
      result in an adjusted offense level of 25 and a resulting guideline
      range of (84-105) months . . . .

Supplemental Objections to the Presen[ten]ce Report, Rec. Vol. I, Doc. 136 at 1.

At sentencing, counsel for Mr. Rhoiney argued that in the absence of the alleged

anomalies in testing “you come up with 33.2” grams. Sentencing Trans. R. Vol.

VIII at 96.

      These statements constitute an admission that the amount of drugs seized

was at least 32 grams. See United States v. Green, 175 F.3d 822, 837–38 (10th

Cir. 1999) (concluding it “appears that [the defendant] admitted to distributing the

half kilogram of cocaine” where the defendant objected to the pre-sentence

report’s determination that he was responsible for two kilograms of cocaine on

the grounds that he could only be accountable for one half kilogram of cocaine);

cf. United States v. Buonocore, ___ F.3d ___, 2005 WL 1666069 at *8 (10th Cir.

July 18, 2005) (concluding that admissions by defense counsel at sentencing were

admissions for Booker purposes). Even if we credit Mr. Rhoiney with a three

level reduction for acceptance of responsibility, the admitted drug amount

authorizes an offense level of 25, which permits a maximum sentence of 105


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months. U.S.S.G. § 5A. Because Mr. Rhoiney’s sentence of 100 months is below

the maximum sentence authorized by admitted facts there is no Sixth Amendment

error in this case.

       There is, however, non-constitutional Booker error present in Mr.

Rhoiney’s sentence because the district court sentenced him under Guidelines

that, at the time, were mandatory. Our precedent establishes that this type of

sentencing error is plain. Gonzalez-Huerta, 403 F.3d at 732. Thus, to obtain

relief Mr. Rhoiney must satisfy the third and fourth prongs of the plain error test.

We follow our standard practice in cases of non-constitutional Booker error by

beginning this analysis with the fourth prong. See id. at 736.

       To satisfy the burden of showing that a failure to correct plain error would

seriously affect the fairness, integrity, or public reputation of the judicial

proceedings a defendant must show that the error in his sentence is one of “those

rare cases in which core notions of justice are offended.” Id. at 739. When a

defendant receives a sentence within the guideline range, as Mr. Rhoiney did, he

must, at a minimum, point to record evidence that could justify a deviation from

the national norm. See id. at 738–39; United States v. Magallanez, 408 F.3d 672,

686 (10th Cir. 2005) (finding that the defendant did not satisfy the fourth prong

where his sentence was within “the national norm and there is no record evidence

to support a lower sentence.”); contrast United States v. Trujillo-Terrazas, 405


                                           -6-
F.3d 814, 819–21 (10th Cir. 2005) (remanding a case of non-constitutional

Booker error where there was evidence to justify a deviation from the range

supplied by the Guidelines). Without providing this evidence, there is little

reason to believe that the district court would impose a different sentence, which

would make a remand pointless. See United States v. Lawrence, 405 F.3d 888,

907 (10th Cir. 2005) (a relevant consideration under the fourth prong is

“[w]hether the district court would simply reimpose the same sentence on remand,

or whether instead the sentence ‘would likely change to a significant degree if

[the case] were returned to the district court for discretionary resentencing.’”)

(quoting Gonzalez-Huerta, 403 F.3d at 743-44 (Ebel, J., concurring)).

      There is no record evidence to suggest that the district court would impose

a different sentence on remand. The district court did not voice any hesitation or

equivocation in sentencing Mr. Rhoiney to 100 months of imprisonment. Nor did

the district court show any discomfort or doubt about the drug amounts.

Sentencing Trans. R. Vol. VIII at 107. (“I believe the government has sustained

its burden of proof in this case, so we’re going to keep the amount of drugs

exactly where they are.”) There is little reason to believe that the district court




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would do anything other than the exact thing it did the first time. Accordingly,

we AFFIRM Mr. Rhoiney’s sentence.

                                              Entered for the Court,

                                              Michael W. McConnell
                                              Circuit Judge




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