                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             June 22, 2005
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.
                                                           No. 04-1267
 JERRY PETERSON also known as                             (D. Colorado)
 Jerry D. Peterson,                                (D.Ct. No. 03-CR-371-WM)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Jerry Peterson pled guilty to conspiracy to distribute and to possess with



      *
          This order and judgment is not binding precedent except under the doctrines of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.
intent to distribute five grams or more of cocaine base. 21 U.S.C. §§ 846,

841(a)(1) and (b)(1)(B). He was sentenced to sixty-seven months imprisonment.

He appeals, arguing he was sentenced in violation of United States v. Booker, - -

U.S. - -, 125 S.Ct. 738 (2005). Exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), we affirm.

                                   I. Background

      Peterson was charged in a multi-count indictment with controlled substance

offenses. On February 21, 2004, Peterson entered into a plea agreement with the

Government wherein he agreed to plead guilty to count one of the indictment

(conspiracy to distribute and to possess with intent to distribute) and the

Government agreed to recommend a three-level reduction for acceptance of

responsibility. See USSG §3E1.1(a) and(b). In addition, the Government

promised if Peterson would provide substantial assistance, it would move for a

downward departure pursuant to USSG §5K1.1. The parties stipulated to the

factual basis for Peterson’s plea. Peterson admitted he and his accomplices

distributed 219.8 grams of crack cocaine. Based on the stipulated drug quantity,

the presentence investigation report (PSR) calculated a base offense level of 34,

see USSG § 2D1.1(c)(3), with a criminal history category III. Given a three-level

reduction for acceptance of responsibility, Peterson’s guideline range for

sentencing was 135-168 months imprisonment.


                                         -2-
      At Peterson’s first scheduled sentencing hearing on June 25, 2004, the

district court asked the parties if they wished to address the Supreme Court’s

decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), a decision published

the previous day, in which the Court invalidated Washington’s sentencing

guidelines under the Sixth Amendment. Because counsel had not had an

opportunity to read the case and the court wished to consider criminal history

issues raised by Peterson, 1 the sentencing hearing was continued until July 1,

2004. At that time, Peterson’s counsel conceded Blakely did not apply to the

proceedings because Peterson had stipulated to the factual basis for his guilty

plea. The Government filed a motion for a fifty percent downward departure

from the bottom of the guideline range pursuant to the plea agreement. The court

granted the motion and sentenced Peterson to a sixty-seven month term of

imprisonment. 2 On appeal, Peterson raises a single issue. He claims his sentence

violates the principles set forth in Booker because the district court applied the

sentencing guidelines as mandatory.

                                        II. Discussion

      In Booker, the Supreme Court extended its holding in Blakely to the federal

sentencing guidelines, holding that the Sixth Amendment requires “[a]ny fact

      1
          Peterson objected to his criminal history category, an issue not raised on appeal.
      2
       The statutory minimum for Peterson’s offense is sixty months imprisonment. 21
U.S.C. § 841(a)(1) and (b)(1)(B).

                                              -3-
(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury

verdict [to] be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” 125 S.Ct. at 755-56. To remedy the constitutional infirmity of the

guidelines, Booker invalidated their mandatory nature, requiring the district court

to consult them as advisory. Id. at 756-57 (severing and excising 18 U.S.C. §§

3553(b)(1), 3742(e)).

      Because Peterson did not raise a Sixth Amendment violation before the

district court, we review for plain error. United States v. Gonzalez-Huerta, 403

F.3d 727, 730 (10th Cir. 2005) (en banc). To establish plain error, he must

demonstrate there is (1) error, (2) that is plain and (3) the error affects his

substantial rights. United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005);

Gonzalez-Huerta, 403 F.3d at 732. If these three prongs are met, we may exercise

our discretion to correct the error if Peterson establishes “the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings[,]” i.e.

the fourth prong of plain error review. Dazey, 403 F.3d at 1174; Gonzalez-

Huerta, 403 F.3d at 736-37.

      The first two prongs of the plain error test have been met—there was error

and the error was plain. Gonzalez-Huerta, 403 F.3d at 732. However, contrary to

Peterson’s arguments, the error was not a structural error, but a “non-


                                           -4-
constitutional Booker error” because no judicial fact-finding occurred at

sentencing. Id. at 731-32 (holding “non-constitutional Booker error” occurs when

the district court applies the guidelines in a mandatory rather than advisory

fashion, even though the resulting sentence was calculated based solely upon facts

admitted by the defendant or found by a jury). Peterson stipulated to the relevant

facts. Thus, his sentence was based solely on his admissions and no Sixth

Amendment violation occurred.

        Moving to the third prong of plain error review, Peterson must show the

district court’s erroneous mandatory application of the guidelines “affected the

outcome of the district court proceedings.” Dazey, 403 F.3d at 1175 (quotations

omitted). However, we need not decide whether he has satisfied the third prong

of the plain error test because, even if he has, he has not met the fourth prong.

See Gonzalez-Huerta, 403 F.3d at 736 (concluding it was unnecessary to

determine whether the third prong of the plain error test was met because the

fourth prong must also be satisfied to obtain relief and the fourth prong was not

met).

        If “non-constitutional Booker error” is involved, as in this case, the

standard for satisfying the fourth prong of the plain error test is

“demanding”—the defendant must show that the error is “particularly egregious”

and that our failure to notice it would result in a “miscarriage of justice.” Dazey,


                                           -5-
403 F.3d at 1178 (quotations omitted); Gonzalez-Huerta, 403 F.3d at 736-37. We

have recognized that in most cases involving “non-constitutional Booker error”

the defendant will be unable to satisfy the fourth prong. See Trujillo-Terrazas,

405 F.3d 814, 820-21 (10th Cir. 2005) (recognizing the difficulty in establishing

the fourth prong in cases involving “non-constitutional Booker error” but finding

that defendant had satisfied the fourth prong). Like the majority of others,

Peterson has not met this demanding standard.

      Here, Peterson received a sentence below the national norm as established

by the guidelines, in light of the downward departure recommended by the

Government and granted by the district court. See Gonzalez-Huerta, 403 F.3d at

738-39 (considering in fourth prong analysis whether the defendant received a

sentence within the national norm represented by a guideline sentence and

whether the record supported a lower sentence). There is nothing in the record to

indicate the court was unhappy with Peterson’s sentence. It declined to impose an

even lower sentence (the statutory minimum) even though it enjoyed the

discretion to do so. We decline to speculate that the district court would impose a

sentence lower than it has already imposed, if given the opportunity to do so. See

Trujillo-Terrazas, 405 F.3d at 82 (“Even if a defendant can demonstrate that the

district court felt particular sympathy for him, and might impose a lesser sentence

on remand, failing to correct [non-constitutional Booker error] would not impugn


                                         -6-
the fairness, integrity, and public reputation of judicial proceedings. Indeed, a

remand might do quite the opposite because another defendant convicted of an

identical crime under identical circumstances could receive a different sentence

from a less sympathetic judge.”). Based on the above, Peterson fails to satisfy the

fourth prong of plain error review. Accordingly, we decline to exercise our

discretion to correct the error.

                                   III. Conclusion

      The judgment of the district court is AFFIRMED.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                         -7-
