                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            June 8, 2005

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 04-2187
 v.                                               (D.C. No. CR-04-669-MV)
                                                        (New Mexico)
 TYRONE WILLETO BECENTI,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, KELLY and TYMKOVICH, Circuit Judges.


      Tyrone Willeto Becenti pled guilty to one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. 922(g)(1). He appeals his

sentence, claiming that it was improperly based on disputed factual allegations

and that it was unreasonable. We affirm.

      The presentence report (PSR) generated in Mr. Becenti’s case included an

assertion that the gun underlying his illegal possession of a firearm had earlier

been stolen from its owner. This assertion was based on discovery performed by

      *
       This order and judgment is not binding precedent, except under the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 government, and not on any admissions made by Mr. Becenti. In assessing

Mr. Becenti’s offense level, the PSR recommended an enhancement of two levels

pursuant to U.S.S.G. § 2K2.1(b)(4) for possession of a stolen firearm. It

concluded that Mr. Becenti’s total offense level was 19, with a criminal history

category of III, for an applicable guideline range of 37 to 46 months.

      Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Mr. Becenti objected

to the PSR’s sentence recommendation on the basis that it violated his Sixth

Amendment right to a jury trial because the fact of the stolen gun was not charged

in his indictment, found by a jury, or admitted by him. He did not object to the

facts presented in the PSR, however. At sentencing, the district court adopted the

PSR’s factual findings and guidelines applications. It sentenced Mr. Becenti at

the bottom of the applicable guideline range, to 37 months imprisonment. The

court then pronounced an alternative sentence, stating that if the guidelines were

invalidated and it had complete sentencing discretion, it would impose exactly the

same sentence.

      In Blakely, the Supreme Court applied the rule it expressed in Apprendi v.

New Jersey, 530 U.S. 466 (2000), to Washington state’s determinate sentencing

regime. See 124 S. Ct. at 2536. Recently, the Court extended Apprendi and

Blakely to the Federal Sentencing Guidelines, holding the Sixth Amendment

requires that “[a]ny fact (other than a prior conviction) which is necessary to


                                          -2-
support a sentence exceeding the maximum authorized by the facts established by

a plea of guilty or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” United States v. Booker, 125 S. Ct. 738, 756

(2005). To remedy the guidelines’ Sixth Amendment problem, the Court severed

and excised 18 U.S.C. § 3553(b)(1), which had required sentencing courts to

impose a sentence within the applicable guidelines range. Id. at 756-57. As a

result, the guidelines are now advisory in all cases. Id. at 757.

      The district court made a factual finding that Mr. Becenti possessed a gun

that was stolen. This finding was not admitted by Mr. Becenti nor established by a

jury, and thus constituted an error of constitutional magnitude. See United States

v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). Because Mr. Becenti preserved

this issue for appeal, we would normally review it for harmless error. See United

States v. Labastida-Segura, 396 F.3d 1140, 1142-43 (10th Cir. 2005). However,

Mr. Becenti concedes, as he must, that the Sixth Amendment error here was

harmless because the district court imposed an alternative sentence setting forth its

position in the event the guidelines were invalidated and it had complete

sentencing discretion. We thus know how the district court would sentence Mr.

Becenti in a sentencing regime in which the guidelines are not mandatory, and we

are therefore not in the “zone of speculation and conjecture” regarding whether the

error affected the court’s selection of the sentence imposed. Id. at 1143 (error


                                          -3-
harmless if it “did not affect the district court’s selection of the sentence

imposed”).

      Because the Sixth Amendment error was harmless, Mr. Becenti now

contends instead that he in effect disputed the underlying factual issue of whether

the gun found in his possession was stolen, by making an objection based on

Blakely. He then claims the district court violated F ED . R. C RIM . P. 32(i)(3) by

failing to hold an evidentiary hearing before ruling on a disputed factual issue.

We are not persuaded. “A defendant [must] raise alleged factual inaccuracies in a

presentence report before the district court in order to preserve the issue on

appeal.” United States v. Green, 175 F.3d 822, 837 (10th Cir. 1999) (internal

quotation omitted). Mr. Becenti’s objection addressed only the Sixth Amendment

issue, a legal argument that was not dependant on whether the gun was stolen. Mr.

Becenti was explicitly given opportunities to object to the facts presented in the

PSR, both before and during sentencing, but he failed to do so. Nor did he request

an evidentiary hearing. Because Mr. Becenti did not preserve the issue, we review

only for plain error. See United States v. Saucedo, 950 F.2d 1508, 1511 (10th Cir.

1991), overruled on other grounds by Stinson v. United States, 508 U.S. 36 (1993).

We have repeatedly held, however, that “factual disputes not brought to the

attention of the [trial] court do not rise to the level of plain error.” United States

v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998); Saucedo, 950 F.2d at 1518.


                                           -4-
      Mr. Becenti also contends the district court’s sentence imposed under the

mandatory guidelines regime was unreasonable because the court failed to consider

the factors set forth in 18 U.S.C. § 3553(a), see Booker, 125 S. Ct. at 765-66, and

relied solely on the presentence report to resolve a disputed factual issue. We

recently held that sentences imposed pre-Booker are not reviewed for

reasonableness because we reserve this standard of review for discretionary

decisions. United States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005).

Furthermore, § 3553(a) was applicable before the Booker decision. Mr. Becenti

could have presented arguments about the statutory factors at sentencing but failed

to do so.   As result, his argument fails.

      For the aforementioned reasons, we AFFIRM Mr. Becenti’s sentence.

                                                   ENTERED FOR THE COURT

                                                   Stephanie K. Seymour
                                                   Circuit Judge




                                             -5-
