                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                         January 27, 2006
                     UNITED STATES COURT OF APPEALS                     Elisabeth A. Shumaker
                                                                           Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES of AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 04-6285
                                                   (D.C. No. CR-02-214-M)
 MICHAEL ROBERTS, a/k/a                                  (W.D. Okla.)
 OUTLAW MICHAEL,

          Defendant-Appellant.


                            ORDER AND JUDGMENT * **


Before EBEL, HOLLOWAY and TYMKOVICH, Circuit Judges.


      Defendant-Appellant Michael James Roberts pleaded guilty to a two-count

information charging him with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g) (“Count 1”), and use of a telephone to facilitate

the manufacture and distribution of methamphetamine in violation of 21 U.S.C.

      *
        This Order and Judgment is not binding precedent, except under the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.
      **
          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 F ED . R. A PP . P. 34(f) and 10th C IR . R. 34.1(G). The
case is therefore ordered submitted without oral argument.
§ 843(b) (Count 2”). 1 After accepting Mr. Roberts’s plea and conducting a

sentencing hearing, the district court sentenced Mr. Roberts to 120 months’

imprisonment for Count 1 and 48 months’ imprisonment for Count 2, to run

consecutively, followed by three years’ supervised release. On appeal, Mr.

Roberts argues that he is entitled to resentencing in light of United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Exercising jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we disagree and therefore AFFIRM

Mr. Roberts’s sentence.



      1
         Title 18, U.S.C. § 922(g) provides, in relevant part:
      (g) It shall be unlawful for any person--
      (1) who has been convicted in any court of, a crime punishable by
      imprisonment for a term exceeding one year; . . .
      to ship or transport in interstate or foreign commerce, or possess in or
      affecting commerce, any firearm or ammunition; or to receive any
      firearm or ammunition which has been shipped or transported in
      interstate or foreign commerce.

      Title 21, U.S.C. § 843(b) provides:
      (b) Communication facility
      It shall be unlawful for any person knowingly or intentionally to use any
      communication facility in committing or in causing or facilitating the
      commission of any act or acts constituting a felony under any provision
      of this subchapter or subchapter II of this chapter. Each separate use of
      a communication facility shall be a separate offense under this
      subsection. For purposes of this subsection, the term “communication
      facility” means any and all public and private instrumentalities used or
      useful in the transmission of writing, signs, signals, pictures, or sounds
      of all kinds and includes mail, telephone, wire, radio, and all other
      means of communication.


                                         -2-
                               I. BACKGROUND

      In January of 2001, the Bureau of Alcohol, Tobacco and Firearms (BATF)

began investigating the Outlaw Motorcycle Club for unlawful firearms possession

and illegal drug trafficking. BATF had identified Mr. Roberts as a member of the

Oklahoma Chapter of the Club. On March 30, 2001, BATF executed a federal

search warrant at the Outlaw Motorcycle Club clubhouse located in Oklahoma

City, where the federal agents later determined Mr. Roberts lived during January,

February, and March of 2001. The investigation revealed that Mr. Roberts had

been in possession of two firearms—a 12-gauge shotgun and a 7.62 x 39 mm

caliber rifle. The investigation further revealed that Mr. Roberts provided

chemicals to members of the Outlaw Motorcycle Club for manufacturing

methamphetamine and was a distributor of methamphetamine for the Club. As a

result of the investigation, Mr. Roberts was charged for his role in manufacturing

and distributing methamphetamine and for illegal possession of a firearm after

previously being convicted of a felony.

      On November 25, 2003, Mr. Roberts entered a plea agreement with the

Government, in which he pleaded guilty to a two-count superseding information

charging him with being a felon in possession of a firearm, a violation of 18

U.S.C. § 922(g), and using a telephone to facilitate the manufacture and

distribution of methamphetamine, a violation of 21 U.S.C. § 843(b). In


                                          -3-
connection with his guilty plea, Mr. Roberts submitted the following written

statement:

      Between January 1999 and August 5, 2002, I had an SKS 7.62 x 39 mm
      semi-automatic rifle and an Ithaca 12 gauge shotgun. I used the
      telephone to distribute methamphetamine and I have a felony conviction
      from California.

Mr. Roberts also expressly waived his right to a jury trial and his appellate rights.

In exchange for Mr. Roberts’s plea, the Government agreed to dismiss all other

counts charged under the second superseding indictment. The district court

accepted Mr. Roberts’s plea after a hearing and referred the case to a probation

officer for a Presentence and Investigation Report (“PSR”).

      The probation officer created the PSR using the 2001 version of the Federal

Sentencing Guidelines. Under those Guidelines, Mr. Roberts’s conviction under

18 U.S.C. § 922(g)—felon in possession of a firearm—warranted a base offense

level of 14. See U.S.S.G. § 2K2.1(a)(6)(A). Section 2K2.1(c)(1) further

provides, however, that, if the defendant “used or possessed any firearm or

ammunition in connection with the commission or attempted commission of

another offense,” the courts should apply § 2X1.1 in respect to the other offense

if the resulting offense level is greater using that other offense. Id. § 2K2.1(c)(1).

Section 2X1.1 then directs that the base offense level for the substantive offense

be used. Id. § 2X1.1.



                                         -4-
      The applicable Guidelines section for violation of 21 U.S.C. § 843(b)—use

of the telephone to facilitate the manufacture and distribution of

methamphetamine—is U.S.S.G. § 2D1.6. This section directs the use of the

offense level applicable to the offense underlying that conviction; here, the

manufacture and distribution of methamphetamine. See id. § 2D1.6.

      The PSR indicated that Mr. Roberts used a firearm in connection with the

manufacture and distribution of methamphetamine; it therefore recommended

applying § 2K2.1(c)(1). Additionally, the PSR estimated that 2.66 kilograms of

actual methamphetamine were attributable to Mr. Roberts and that this was the

underlying offense applicable to both of Mr. Roberts’s convictions pursuant to

sections 2X1.1 and 2D1.6 of the Guidelines. Based on this relevant conduct, the

PSR assigned an enhanced base offense level of 38 for the two convictions

pursuant to § 2D1.1(c)(1). 2 The probation officer then recommended a two-level

enhancement for possession of a dangerous weapon pursuant to U.S.S.G.



      2
        Guidelines § 2D1.1(c)(1) assigns a base offense level of 38 for offenses
involving “1.5 KG or more of Methamphetamine (actual).” U.S.S.G.
§ 2D1.1(c)(1). The applicable Note explains that:
      “Methamphetamine (actual)” refer[s] to the weight of the controlled
      substance, itself, contained in the mixture or substance. . . . In the case
      of a mixture or substance containing . . . methamphetamine, use the
      offense level determined by the entire weight of the mixture or
      substance, or the offense level determined by the weight of the . . .
      methamphetamine (actual), whichever is greater.
U.S.S.G. § 2D1.1(c) n.(B).

                                         -5-
§ 2D1.1(b)(1), and a three-level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a) & (b).

      With a criminal history category III, Mr. Roberts’s Guideline range was

therefore 262-327 months for each count. Because this range exceeded the

applicable statutory maximum for Count 1 and for Count 2, the statutory

maximums superseded the Guideline range pursuant to U.S.S.G. § 5G1.1. 3 The

probation officer therefore assigned the statutory maximums as the guideline for

imprisonment on each count, 120 months on Count 1 and 48 months on Count 2.

See 18 U.S.C. § 924(a)(2); 21 U.S.C. § 843(d)(1).

      Prior to sentencing, Mr. Roberts submitted a number of objections to the

PSR, including an objection based on Blakely v. Washington, 542 U.S. 296

(2004), which the Supreme Court issued between the time Mr. Roberts pleaded

guilty and his sentencing. Mr. Roberts specifically disputed the type and quantity


      3
        Section 5G1.1 reads:
      (a) Where the statutorily authorized maximum sentence is less than the
      minimum of the applicable guideline range, the statutorily authorized
      maximum sentence shall be the guideline sentence.
      (b) Where a statutorily required minimum sentence is greater than the
      maximum of the applicable guideline range, the statutorily required
      minimum sentence shall be the guideline sentence.
      (c) In any other case, the sentence may be imposed at any point within
      the applicable guideline range, provided that the sentence--
             (1) is not greater than the statutorily authorized maximum
             sentence, and
             (2) is not less than any statutorily required minimum sentence.
U.S.S.G. § 5G1.1.

                                         -6-
of drugs the PSR attributed to him and the involvement of a firearm in the

commission or attempted commission of another offense. Additionally, he

objected to any increase in his sentence based on these facts.

      At the sentencing hearing on August 31, 2004, the district court declined to

address the effect of Blakely because the Supreme Court had granted certiorari in

Booker. Instead, the district court mandatorily sentenced Mr. Roberts according

to the Federal Sentencing Guidelines. The district court found that “it was not

clearly improbable that the weapon [, which Mr. Roberts admitted possessing,]

was involved in the offense” of distributing methamphetamine. Additionally, the

district court found by a preponderance of the evidence that at least 2.66

kilograms of actual methamphetamine were attributable to Mr. Roberts. Based on

these factual findings, the district court accepted the recommendations of the PSR

and imposed a 120-month sentence for the felon in possession conviction and a

48-month sentence for the use of the telephone to facilitate the manufacture and

distribution of methamphetamine conviction, to run consecutively.

      The district court also opted to provide two alternative sentences. In the

first alternative, in the event the Guidelines were held to be unconstitutional by

the then-pending Booker decision, the court announced an alternative sentence of

120 months on Count 1 and 48 months on Count 2, to run consecutively. As a

second alternative, in the event that only the upward enhancements were found to


                                         -7-
be unconstitutional, the court indicated that Mr. Roberts’s Guideline range would

then be 15-21 months for both Counts 1 and 2 and announced a sentence of 21

months on Count 1 and 21 months on Count 2, to be served consecutively. This

appeal followed.

                                II. DISCUSSION

      On appeal, Mr. Roberts contends that the enhancements to his sentence

under § 2D1.1(c)(1), applicable pursuant to §§ 2K2.1(c)(1) and 2D1.6, violated

his constitutional rights because the district court engaged in fact-finding declared

unconstitutional by Booker. In response, the Government argues that Mr. Roberts

is not entitled to be resentenced in light of Booker because Mr. Roberts waived

his Sixth Amendment rights. Although we agree that, by pleading guilty and

signing the waiver of jury trial form, Mr. Roberts is precluded from raising a

constitutional Booker argument, he is not precluded from raising a non-

constitutional Booker argument. Nonetheless, we affirm the district court’s

sentence because we conclude that any non-constitutional Booker error was

harmless.

A. Waiver of Constitutional Rights

      “A waiver is the intentional relinquishment or abandonment of a known

right or privilege.” United States v. Leach, 417 F.3d 1099, 1103-04 (10th Cir.

2005). We review whether a constitutional right was knowingly waived de novo.


                                        -8-
United States v. Morris, 287 F.3d 985, 988 (10th Cir. 2002). Here, Mr. Roberts

executed two waivers: 1) a written waiver of his Sixth Amendment right to a jury

trial, which he reaffirmed in his petition to plead guilty and again during the plea

hearing and 2) a waiver of appellate rights in his plea agreement.

      1.       Waiver of right to appeal and bring collateral challenge.

      In an Order dated April 5, 2005, we denied the Government’s motion to

enforce the waiver of appellate rights contained in Mr. Roberts’s plea agreement. 4


      4
           In full, that waiver reads as follows:

      9.    Defendant understands that a sentencing guideline range for his
      case will be determined by the Court under the guidelines issued by the
      U.S. Sentencing Commission. Defendant also understands that the
      Court has jurisdiction and authority to impose any sentence within the
      statutory maximum for the offense(s) to which he is pleading guilty.
      Defendant further understands that Title 28, United States Code,
      Section 1291, and Title 18, United States Code, Section 3742, give him
      the right to appeal the judgment and sentence imposed by the court.
      Acknowledging all this, defendant in exchange for the promises and
      concessions made by the United States in this plea agreement,
      knowingly and voluntarily waives his right to:
             a. Appeal or collaterally challenge his guilty plea and any other
      aspect of his conviction, including but not limited to any rulings on
      pretrial suppression motions or any other pretrial dispositions of
      motions and issues.
             b. Appeal, collaterally challenge, or move to modify under 18
      U.S.C. § 3582(c)(2) or some other ground, his sentence as imposed by
      the Court and the manner in which the sentence is determined, provided
      the sentence is within or below the applicable guideline range
      determined by the Court to apply in this case. Defendant acknowledges
      that this waiver remains in full effect and enforceable, even if the Court
      rejects one or more of the positions of the United States or defendant
                                                                         (continued...)

                                           -9-
The final paragraph of that waiver expressly excluded challenges based on

changes in Supreme Court or Tenth Circuit case law that have retroactive effect.

In Booker, the Court stated that: “We must apply today’s holding—both the Sixth

Amendment holding and our remedial interpretation of the Sentencing Act—to all

cases on direct review.” Booker, 125 S. Ct. at 769 (citing Griffin v. Kentucky,

479 U.S. 314, 328 (1987) (“[a] new rule for the conduct of criminal prosecution is

to be applied retroactively to all cases . . . pending on direct review or not yet

final, with no exception for cases in which the new rule constitutes a ‘clear break’

with the past.”)). Accordingly, we concluded that Mr. Roberts appeal challenging

his sentence under Booker was not within the scope of his appellate waiver.

      2.       Waiver of Sixth Amendment right to a jury trial.

      Separate from the waiver of appellate rights, Mr. Roberts also executed a

written waiver of his Sixth Amendment right to a jury trial. 5 We have previously

      4
       (...continued)
      set forth in paragraph 7 concerning the application of the U.S.
      Sentencing Guidelines.
              c. It is provided that (i) defendant specifically does not waive
      the right to appeal an upward departure from the sentencing guideline
      range determined by the Court to apply in this case, and (ii) his waiver
      of right to appeal and to bring collateral challenges shall not apply to
      appeals or challenges based on changes in the law reflected in Tenth
      Circuit or Supreme Court cases decided after the date of this agreement
      that are held by the Tenth Circuit or Supreme Court to have retroactive
      effect.
      5
           That waiver read as follows:
                                                                          (continued...)

                                          - 10 -
held that when, as here, a defendant “waive[s], without qualification, [his] right

to a jury trial in [his] guilty plea, . . . [he] may not [on appeal] assign as error the

failure of the district court to afford [him] a jury determination of facts relevant



       5
        (...continued)
       I, Michael Roberts, the undersigned defendant, having been fully
       apprised of my rights, do hereby waive a jury trial and agree to try the
       above entitled case to the Court as provided by Rule 23(a), Federal
       Rules of Criminal Procedure.

Additionally, Mr. Roberts’s petition to plead guilty contained the following
waiver:
      11. Do you understand that you have a right to plead NOT GUILTY
      to every charge filed against you? Yes X No ___
      12. Do you understand if you plead NOT GUILTY you have the
      following constitutional rights:
            (a) the right to a speedy and public trial by jury? Yes X
            No___
            ...
            (f) the right to be presumed innocent until the United States has
      proved you guilty beyond a reasonable doubt by the unanimous
      agreement of all 12 jury members? Yes X No ___

And the Transcript of Change of the Plea reflects the following exchange between
the district court judge and Mr. Roberts:
       THE COURT: Do you understand that you have the right to a jury trial
       and that you, and you alone, may waive or give up that right?
       THE DEFENDANT: Yes.
       THE COURT: Do you understand . . .,
               to convict you, all 12 of those jury members would have to agree
       unanimously that you are guilty. If you waive jury trial, the Court, then,
       would determine your guilt or your innocence.
               Do you understand all of these many rights that you will give up
       if this Court accepts your guilty plea?
       THE DEFENDANT: Yes, ma’am.


                                          - 11 -
to sentencing.” Leach, 417 F.3d at 1104. Furthermore, we have previously held

that “a waiver of appellate rights [is] not rendered unknowing or involuntary by

the Supreme Court’s subsequent issuance of Booker or Blakely.” Id. We

therefore conclude that while Mr. Roberts did not generally waive his right to

challenge his appeal based on Booker, he specifically waived his right to

challenge his sentence based on Sixth Amendment grounds.

      The Government argues that Mr. Roberts is not entitled to have his

sentence remanded in light of Booker on any grounds because he waived his Sixth

Amendment rights. Such an argument, however, fails to recognize that district

courts may commit two distinct types of error at sentencing under the Sentencing

Guidelines: one constitutional and one non-constitutional. United States v.

Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.) (en banc), cert. denied, 126 S.

Ct. 495 (2005). A sentencing court commits constitutional Booker error “by

relying upon judge-found facts, other than those of prior convictions, to enhance a

defendant’s sentence mandatorily.” Id. at 731. Non-constitutional error, on the

other hand, involves “applying the Guidelines in a mandatory fashion, as opposed

to a discretionary fashion.” Id.

      We therefore conclude that, by pleading guilty and executing and

reaffirming a waiver of jury trial form, Mr. Roberts waived his right to challenge

his sentence as constitutionally erroneous under Booker on the ground that the


                                       - 12 -
district court failed to afford him a jury determination of facts relevant to

mandatory sentencing, as the Sixth Amendment requires; however, Mr. Roberts

has not waived his right to challenge his sentence under Booker based on non-

constitutional error.



B. Non-constitutional Booker Error

      “Any sentence imposed through mandatory application of the Sentencing

Guidelines, even where there is no Sixth Amendment violation, is erroneous.”

United States v. Serrano-Dominguez, 406 F.3d 1221, 1223 (10th Cir. 2005)

(citing Gonzales-Huerta, 403 F.3d at 731). Here, the district court applied the

sentence then-mandated by the Sentencing Guidelines—120 months for the felon

in possession conviction and 48 months for the use of the telephone to facilitate

the manufacture and distribution of methamphetamine conviction. In doing so,

the district court committed non-constitutional Booker error.

      In this case, the Government admits and the record indicates that Mr.

Roberts preserved the issue of potential Booker error for appeal by making a

Blakely objection at the sentencing hearing. See United States v. Geames, 427

F.3d 1333, 1339 (10th Cir. 2005). Where a defendant preserves a potential

Booker error, we apply a harmless error analysis. United States v. Marshall, 432

F.3d 1157, 1160 (10th Cir. 2005). “In non-constitutional harmless error cases, the


                                         - 13 -
government bears the burden of demonstrating, by a preponderance of the

evidence, that the substantial rights of the defendant were not affected.” Id. at

1162 (quotations omitted). We conclude that the Government has met its burden

in this case.

       “If the sentencing error does not affect the sentence that would have been

imposed by the district court, it does not affect substantial rights.” Id. (citing

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

Non-constitutional Booker error is therefore harmless when, for example, “we are

not required to engage in any speculation . . . because the district court explained

exactly what it would do if the Guidelines were found unconstitutional.” United

States v. Corchado, 427 F.3d 815, 821 (10th Cir. 2005). Thus, where, as here, the

district court announces an alternative sentence using the Guidelines as advisory

rather than mandatory and that sentence is identical to the sentence imposed under

a mandatory Guideline regime, non-constitutional error does not warrant a

remand. See Serrano-Dominguez, 406 F.3d at 1223-24 (holding that the district

court’s non-constitutional Booker error was harmless because the district court’s

announcement of an alternative sentence not based on the Guidelines made clear

it would have imposed same sentence on remand).

       Furthermore, “[a]lthough the district court did not specify that it was

applying the sentencing methodology suggested in Booker . . . [,] we know that


                                         - 14 -
the court consulted the Guidelines and adopted the findings in the PSR, which

analyzed several of the factors set forth in 18 U.S.C. § 3553(a)” in sentencing Mr.

Roberts. See Corchado, 427 F.3d at 821; see also United States v. Rines, 419

F.3d 1104, 1107 (10th Cir. 2005), cert. denied, — S. Ct. —, 2006 WL 37744

(2006) (recognizing that the district court need not “march through § 3553(a)’s

sentencing factors” before we uphold a sentence).



                               III. CONCLUSION

      Based on the foregoing, we AFFIRM Mr. Roberts’s sentence because the

district judge’s announcement of an alternative sentence, based on the

methodology later announced in Booker, that was identical to the sentence

imposed under the then-mandatory Guidelines renders any non-constitutional

Booker error harmless.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                       - 15 -
