                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 2 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-3375
          v.                                            (D. Kansas)
 ROBERT J. SNITZ,                              (D.C. No. 99-CR-20055-KHV)

               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 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       This order and judgment is not binding precedent, except under the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.
      Appellant Robert J. Snitz (“Snitz”) pled guilty to possession with intent to

distribute cocaine. He appeals his ninety-seven-month sentence, contending that

it was imposed in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004), and

United States v. Booker, 125 S. Ct. 738 (2005). 1 We affirm.



                                BACKGROUND

      Pursuant to a written plea agreement, Snitz pled guilty to a one-count

indictment charging him with possession with intent to distribute approximately

213.6 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The plea

agreement contained the following description of the facts:

             On or about June 2, 1999, Kansas City, Kansas police officers
      were dispatched to the residence of 4717 Leavenworth Road, Kansas
      City, Kansas, on a reported disturbance with shots fired. Upon their
      arrival, they met the defendant, Robert J. Snitz. . . . The officers
      informed Snitz of the purpose of their presence and that they needed
      to check on the welfare of anyone inside the house. . . . As officers
      entered a bedroom, they observed, in plain sight, a single rock of
      suspected crack cocaine, a pipe commonly used to smoke cocaine,
      and a syringe on the nightstand. They also observed in plain view a
      revolver on a makeshift shelf along the wall. . . . A search warrant
      was obtained for the residence and a substantial amount of suspected
      crack cocaine was recovered from inside the residence and in the
      back yard of the residence. The total weight of the cocaine recovered
      was approximately 213.6 grams. . . . Additionally, approximately



      1
       When the defendant raised Blakely before this court, the Supreme Court
had not yet issued United States v. Booker, 125 S. Ct. 738 (2005). Snitz,
however, raised Booker in supplemental briefing, and we apply both cases.

                                     -2-
       $12,050.00 in U.S. currency was recovered from the residence as
       well as 4 handguns.

Plea Agreement, Appellant’s App., Vol. I at 26-27. The plea agreement also

contained an admission by Snitz that “if this matter had proceeded to trial the

government could produce evidence” to support the facts recited in the agreement.

Id. at 26.

       On August 30, 1999, Snitz entered his guilty plea at a change-of-plea

hearing. At the hearing, the government read parts of the plea agreement’s

factual basis, quoted above, into the record. The prosecutor, however, did not at

that time mention any of the facts relating to the seized firearms.

       Snitz was sentenced on February 28, 2000. The 213.6 grams of cocaine in

the indictment established a United States Sentencing Commission, Guidelines

Manual (“USSG” or “Guidelines”), base offense level of 34. Snitz was assessed a

two-level enhancement under USSG §2D1.1(b)(1) for possession of a dangerous

weapon, assessed a three-level downward departure under §3E1.1 for acceptance

of responsibility and, pursuant to a government motion, was assessed a four-level

downward departure under §5K1.1 for substantial assistance to the government in

the investigation and prosecution of other crimes. This resulted in a total offense

level of 29, and, with a criminal history category of II, yielded a sentencing range




                                          -3-
of 97 to 121 months. The district court sentenced Snitz to ninety-seven months,

the bottom of the range. Snitz then filed this appeal. 2



                                   DISCUSSION

      On appeal, Snitz argues (1) that his sentence violates the constitutional

holding of Blakely/Booker because the facts underlying the gun enhancement

were found by the judge, rather than a jury, and because absent the enhancement

he would have been sentenced to between 78 and 97 months, a sentence possibly

19 months shorter than the sentence he received; and (2) that his sentence violates

the non-constitutional holding of Booker because the judge believed she was


      2
        The district court entered final judgment in this case on March 7, 2000.
No notice of appeal was filed by Snitz’s attorney, and Snitz, acting pro se, filed a
28 U.S.C. § 2255 petition alleging ineffective assistance of counsel. The district
court held a hearing and determined that trial counsel did fail to file the appeal,
but concluded that relief was unwarranted because an appeal would have been
meritless. The district court granted a certificate of appealability on this issue,
and this court subsequently held that Snitz was entitled to pursue a direct appeal.
See United States v. Snitz, 342 F.3d 1154, 1159 (10th Cir. 2003). This court
directed the district court to vacate and re-enter its judgment of conviction and
sentence to allow defendant to file a timely appeal and noted that Snitz was to be
treated “like any other appellant.” Id. The district court’s Amended Judgment in
a Criminal Case was entered on November 10, 2003, and Snitz filed his pro se
notice of appeal on December 11, 2003. This court then partially remanded the
case to the district court for a determination of whether Snitz’s failure to comply
with Fed. R. App. P. 4(b)(1)(A)(I), which provides that a notice of appeal must be
filed within ten days of the entry of judgment, was based on excusable neglect.
On March 19, 2004, the district court entered an order finding that the delay was
based on excusable neglect and that the notice of appeal was timely filed. The
appeal is now properly before us for adjudication on the merits.

                                          -4-
acting under a mandatory, rather than advisory, sentencing scheme when she

imposed the punishment.

      The Sixth Amendment requires that “[a]ny fact (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 must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.”

Booker, 125 S. Ct. at 756. In Booker, the Supreme Court also held that the

Guidelines are no longer to be applied mandatorily, but district courts are required

to consult them in an advisory fashion. United States v. Labastida-Segura, 396

F.3d 1140, 1142 (10th Cir. 2005). There are two distinct types of error that a

court sentencing prior to Booker could have made: constitutional Booker error,

which occurs when a judge finds facts that enhanced a defendant’s sentence

mandatorily, and non-constitutional Booker error, which occurs when a

sentencing court applies the Guidelines in a mandatory, as opposed to

discretionary, fashion. United States v. Gonzalez-Huerta, No. 04-2045, __ F.3d

__, 2005 WL 807008, at *3 (10th Cir. Apr. 8, 2005) (en banc).

      Because Snitz raised neither the constitutional nor non-constitutional

holding of Booker below, but argues both on appeal, we review both for plain

error. Id. at *3; see also Booker, 125 S. Ct. at 769 (“[W]e expect reviewing

courts to apply ordinary prudential doctrines, determining, for example, whether


                                         -5-
the issue was raised below and whether it fails the ‘plain-error’ test.”). Reversal

under the plain-error standard requires “(1) an error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Gonzalez-Huerta, 2005 WL 807008, at

*3.

      First, we reject the argument that the district court committed constitutional

error in sentencing Snitz because we conclude that he admitted to the gun

possession, which was the fact underlying the enhancement. Blakely/Booker do

not apply to sentences based on facts which have been admitted by the defendant.

Blakely, 124 S. Ct. at 2537; Booker, 125 S. Ct. at 756. As indicated above, Snitz

signed a plea agreement in which he acknowledged that the government had

evidence of the facts recited therein, including that officers “observed in plain

view a revolver on a makeshift shelf along the wall” in Snitz’s residence and later

recovered four handguns from the home. Plea Agreement, Appellant’s App., Vol.

I at 26. See Shepard v. United States, 125 S. Ct. 1254, 1257 (2005) (holding that

a court may look at a written plea agreement to determine the character of a




                                          -6-
defendant’s admissions). 3 The Sixth Amendment holding in Booker thus does not

apply to the two-point firearms enhancement.

      Snitz next argues that the district court committed non-constitutional

Booker error by mandatorily applying the Guidelines. Assuming there was error

in sentencing Snitz under the Guidelines, and that the error was plain, Gonzalez-

Huerta, 2005 WL807008, at *3, Snitz cannot meet the third prong of the plain-

error test. To affect substantial rights, an error must have been prejudicial and

“must have affected the outcome of the district court proceedings.” United States

v. Cotton, 535 U.S. 625, 632 (2002). The burden is on the defendant to

demonstrate that the error affected his substantial rights. United States v. Olano,

507 U.S. 725, 734-35 (1993). In such cases, the defendant is required to show a

“reasonable probability” that the purported error altered the result of the

sentencing proceedings. United States v. Dominguez-Benitez, 124 S. Ct. 2333,

2339 (2004). “[A defendant] can make this showing by demonstrating a

reasonable probability that had the district court applied the post-Booker

sentencing framework, he would have received a lesser sentence.” United States



      3
        In addition to admitting to the gun possession in the plea agreement, Snitz
failed to object to the detailed descriptions of the seized weapons in the
Presentence Investigation Report. However, it is unnecessary for us to determine
whether Snitz’s failure to object to the PSR constitutes a further admission in this
case because we have already concluded that Snitz admitted to the gun possession
in the plea agreement.

                                         -7-
v. Trujillo-Terrazas, No. 04-2075, 2005 WL 880896, at *2 (10th Cir. Apr. 13,

2005).

         Snitz has failed to point to anything specifically demonstrating a reasonable

probability that the judge would have sentenced him any differently in a post-

Booker world. As the government points out, the comments of the district court

at sentencing indicate that the court believed it could have imposed a shorter

sentence because it was considering the application of a §5K1.1 departure. Under

that section, the appropriateness of a reduction for substantial assistance and the

amount of any reduction are in the court’s sole discretion. See USSG §5K1.1

(“The appropriate reduction shall be determined by the court.”).

         In Snitz’s case, the district court heard argument from both sides as to the

appropriate reduction. The government recommended a four-level decrease, but

the defense argued for probation or, alternatively, for a decrease that would result

in a sentence of twenty-seven months. The court then acknowledged it had

discretion in these types of cases, denied the defense’s “huge” reduction request,

and stated its reasons for imposing the four-level departure the government

recommended:

         I think in the interest of having comparable sentences imposed, you
         know, for comparable offenses and given comparable assistance, that
         I am constrained to give a departure in this case which is in line with
         the departures that we give in other cases where similar assistance is
         involved for similar offenses and similar criminal history points, and
         I think that the Government’s recommendation is squarely within the

                                            -8-
      range of how we have handled other cases and I think it’s appropriate
      for this case.

Tr. of Sentencing Hr’g, Appellant’s App., Vol. I at 116. The very nature of the

judge’s comments demonstrate that she was acting with discretion. Cf. Trujillo-

Terrazas, 2005 WL 880896, at *4 (finding that judge’s comment “I have to do

what I have to do” demonstrated that he felt constrained by the mandatory nature

of the Guidelines). The defendant has therefore failed to demonstrate a

reasonable probability that his sentence would have been different had the judge

viewed the Guidelines as merely advisory.



                                 CONCLUSION

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

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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