                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               May 3, 2006
                                      TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,                    No. 05-1308
           v.                                              (D. Colorado)
 MICHAEL TYRONE SOMERVILLE                          (D.C. No. 04-CR-185-REB)
 a/k/a Big Mike,

                  Defendant - Appellant.


                                ORDER AND JUDGMENT         *




Before TACHA, Chief Circuit Judge,         ANDERSON and BALDOCK , Circuit
Judges.




       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). 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       This order and judgment is not binding precedent, except under the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.
      Following a jury trial, Michael Tyrone Somerville was found guilty of four

counts of distribution of five grams or more of crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B), and one count of possession of ammunition by a

felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to 324 months’

imprisonment. He appeals his sentence, which we affirm.



                                     BACKGROUND

      In a series of controlled buys in Colorado Springs, Colorado, a confidential

informant, Anthony Johns, purchased crack cocaine from Somerville.

Specifically, on May 6, 2003, Johns met Somerville in the parking lot of a fast-

food restaurant and purchased from Somerville 12.7 net grams of crack cocaine.

Johns subsequently bought from Somerville 25.9 grams of crack cocaine on

May 7, 2003, 24.5 grams of crack cocaine on January 16, 2004, and 47.2 grams of

crack cocaine on February 6, 2004.    1
                                          Law enforcement authorities arrested

Somerville a few hours after this last sale. During the execution of a federal

search warrant at Somerville’s residence on February 6, 2004, law enforcement

authorities found numerous rounds of live ammunition.



      1
       Ultimately 150.1 grams of crack cocaine or its equivalent were attributed
to Somerville. This included some crack cocaine found in a bag Somerville had at
the time of his arrest and some crack cocaine Somerville sold to another
individual just prior to Somerville’s arrest.

                                            -2-
      During his trial, both Somerville and the confidential informant, Johns,

testified. Concerning the January 16, 2004, drug transaction, Johns testified that

he saw a .40 caliber weapon at the residence where the controlled buy took place

and where Somerville was cooking crack cocaine. Johns also surreptitiously

recorded the conversation he had with Somerville during that transaction. That

recording was played to the jury.   2



      After the jury returned its guilty verdict, sentencing proceedings

commenced. The probation office prepared a presentence report (“PSR”), which

calculated Somerville’s base offense level as thirty-four, which it recommended

increasing by two levels, pursuant to United States Sentencing Commission,

Guidelines Manual (“USSG”), §2D1.1(b)(2) (Nov. 2004), because Somerville

possessed a dangerous weapon during the January 16, 2004, drug transaction, and

by another two levels, pursuant to USSG §3C1.1, because Somerville obstructed

justice. This latter allegation was based upon Somerville’s testimony at trial and


      2
       The record on appeal contains neither a copy of the audio tape of the
conversation, nor a transcription of it. However, the government’s brief contains
an excerpt from the transcription, and Somerville does not dispute the accuracy of
the government’s excerpt. We therefore assume that it accurately reflects the
conversation between Johns and Somerville. Moreover, we note that the district
court heard the audio tape and presumably read the transcription. Somerville
argues that we should reverse the district court’s firearm possession enhancement
because the tape of the conversation between himself and Johns was “confusing.”
Appellant’s Op. Br. at 6. He has significantly undermined his ability to make that
argument because he has failed to include the tape or a transcript of it in the
record before us.

                                         -3-
upon statements he had made to the police during its investigation into this case.

These enhancements resulted in a total offense level of thirty-eight. All parties

agreed that, as the PSR stated, Somerville qualified as a career offender under

USSG §4B1.1(a) because of several prior felony convictions for controlled

substance offenses, although, because his basic Guideline sentencing range was

more severe, that Guideline sentencing range applied rather than the career

offender provisions. The PSR also calculated a criminal history category of IV.

This yielded an advisory Guideline sentencing range of 324 to 405 months. The

PSR recommended a sentence of 324 months, followed by five years of

supervised release.

       Somerville filed objections to the PSR, arguing that there was “no evidence

that he lied at trial, nor did he provide ‘materially false information to a judge.’”

Objections by the Def., PSR add. at A-1, R. Vol. XI. Additionally, Somerville

asserted that “[a]s the Court heard the testimony at trial, it is in a better position

than the probation officer to determine the applicability of this adjustment.”     Id.

Somerville also objected to the two-level increase for possession of the firearm

during the January 16, 2004, drug transaction, arguing there was “insufficient

evidence” and again deferring to the district court’s better ability, as compared to

the probation office, to assess the applicability of this enhancement.       Id.




                                             -4-
Somerville filed another objection to the PSR, reiterating the above objections

and more fully explaining why he felt he had not obstructed justice.

       The district court overruled his objection to the obstruction of justice

enhancement, stating the following:

              I presided over all pretrial and trial proceedings, and frankly
       was amazed and nonplussed simultaneously at the ease and way in
       which Mr. Somerville decided what then at the moment would be the
       truth at the time. He confessed that he lied when convenient or
       necessary to the authorities, including the police and then, whether
       he realized it or not, to the trier of fact and to the sentencing Court.
       That is obstruction of justice. That is the quintessence of obstruction
       of justice.

Tr. of Sentencing at 14, R. Vol. IV. With respect to the firearm enhancement,

the court also overruled Somerville’s objection, stating the following:

       I, too, listened to the trial evidence. And I would have found by
       proof beyond a reasonable doubt, not merely a preponderance of the
       evidence, that during the relevant transaction that the .40 caliber
       handgun was present, and not surprisingly so. My own conclusion
       was that Mr. Somerville at that time wanted [Johns] . . . to
       understand that he was armed, that he did have firearms, and what
       could be more logical in a gentleman who has chosen a philosophy
       and a vocation of drug-dealing to warn clients, associates, and the
       world alike that [he is] armed and dangerous and prepared to protect
       [his] drug business.

Id. at 15.

       The district court therefore adopted the findings and conclusions of the

PSR and calculated a total offense level for Somerville of 38, which included the

two disputed two-level enhancements. After considering the sentencing factors


                                          -5-
contained in 18 U.S.C. § 3553(a), as required by   United States v. Booker , 543

U.S. 220 (2005), including the advisory Guidelines range of 324 to 405 months,

the district court sentenced Somerville to 324 months.

      This appeal followed, in which Somerville argues the district court erred in:

(1) adding two levels to his Guidelines offense level for possession of a firearm

where “the weapon was not recovered and the only evidence of a weapon was the

tape recorded conversation with [Johns]”; and (2) adding two levels to his

Guidelines offense level when the court found Somerville had obstructed justice

during his trial testimony because “[w]hatever misstatements [Somerville] may

have made were minor in comparison to his clear admission to guilt in the crimes

for which he was charged.” Appellant’s Op. Br. at 5. Somerville further argues

that, without those two enhancements, his total offense level would have been 34

and, applying the career offender provisions, his Guidelines sentencing range

would have been 262 to 327 months. “Had the court determined the guideline

ranges correctly, it may have been inclined to impose a lower sentence despite its

comments to the contrary.”    Id.



                                    DISCUSSION

      Following the Supreme Court’s decision in     Booker , the Guidelines are

advisory. Nonetheless, because sentencing courts are required to “consider” the


                                           -6-
properly-calculated Guidelines sentencing range,        United States v. Gonzalez-

Huerta , 403 F.3d 727, 748-49 (10th Cir.) (en banc) (internal quotation omitted),

cert. denied , 126 S. Ct. 495 (2005), we continue to review the sentencing court’s

factual findings under the Guidelines for clear error and its legal determinations

de novo. United States v. Serrata , 425 F.3d 886, 906 (10th Cir. 2005). “We give

due deference to the district court’s application of the guidelines to the facts.”   Id.

(further quotation omitted). “A finding of fact is clearly erroneous if it is without

factual support in the record or if the appellate court, after reviewing all the

evidence, is left with a definite and firm conviction that a mistake has been

made.” United States v. Clark , 415 F.3d 1234, 1246 (10th Cir. 2005) (further

quotation omitted). We review for reasonableness the ultimate sentence imposed.

Booker , 543 U.S. at 261-62 (Bryer, J.) “[A] sentence that is properly calculated

under the Guidelines is entitled to a rebuttable presumption of reasonableness.”

United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006) (per curiam).

       We have carefully reviewed the record in this case and conclude that there

is ample evidence supporting the two enhancements found by the district court.

Indeed, with respect to the possession of a firearm enhancement, not only does the

excerpt 3 from the taped conversation between Somerville and Johns clearly

indicate that Somerville had a .40 caliber firearm, but Johns, as indicated above,


       3
           See supra, note 2.

                                              -7-
testified that when he entered the house where the January 16, 2004, drug

transaction took place, he saw a .40 caliber weapon “[s]itting on top of a box.”

Tr. of Jury Trial at 256, R. Vol. VII. We find no clear error in the district court’s

application of that enhancement.

       Similarly, we find no error in the district court’s conclusion that Somerville

had obstructed justice in this case by lying to police authorities and to the court.

Somerville’s testimony is riddled with inconsistencies, flat-out contradictions of

prior statements, and admissions that he lied to the police at various times about

material aspects of their case against him. Moreover, the district court was able

to view Somerville while testifying and assess his credibility. The district court’s

statement in support of the obstruction of justice enhancement makes it very clear

that the court found Somerville not credible and had observed him making false

statements under oath to the court. As the court noted, that is the quintessence of

obstruction of justice.

       Aside from his argument that the two challenged enhancements contributed

to a longer sentence, Somerville develops no other argument that his sentence was

in any other way unreasonable under       Booker . We conclude that it was reasonable

and the district court followed the dictates of    Booker in imposing it.




                                             -8-
                         CONCLUSION

For the foregoing reasons, we AFFIRM Somerville’s sentence.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




                               -9-
