                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       January 26, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 05-5001
v.
                                              (Northern District of Oklahoma)
                                                 (D.C. No. 04-CR-24-EA)
ALFRED MELGAR, also known as
Adelaida Melgar Blanco,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.



      Following a jury trial, Alfred Melgar was convicted of a single count of

possession of at least five kilograms of cocaine with intent to distribute. The

district court sentenced Melgar to a 151-month term of imprisonment and a five-

year term of supervised release. On appeal, Melgar asserts the district court

committed plain error at sentencing when it treated the United States Sentencing


      *
       This order and judgment is not binding precedent, except under the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.
Guidelines as mandatory instead of advisory. See United States v. Booker, 125 S.

Ct. 738 (2005). Because Melgar has failed to demonstrate that his substantial

rights were affected by the district court’s non-constitutional Booker error, this

court affirms the sentence imposed by the district court.

      During a traffic stop of Melgar’s vehicle, law enforcement officers found a

large quantity of cocaine. Melgar was indicted on a single count of possessing

with intent to distribute at least five kilograms of cocaine, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). Specifically, the indictment alleged

Melgar possessed “approximately 31 kilograms of cocaine.” At trial, Melgar

contested, inter alia, the actual quantity of cocaine found in his vehicle.

      At the close of evidence, the district court submitted to the jury in a special

verdict form not only the crime set out in the indictment, i.e., possession of at

least five kilograms of cocaine with intent to distribute, but also the lesser

included offense of possession of at least 500 grams of cocaine with intent to

distribute in violation of 21 U.S.C. § 841(a) and 841(b)(1)(B)(ii). Pursuant to the

special verdict form, the jury was to first consider whether Melgar was guilty of

possessing with intent to distribute at least five kilograms of cocaine. If it

concluded that he was, the jury was to move on and determine whether Melgar

possessed either (1) “at least five kilograms but less than 15 kilograms”; or (2) “at

least 15 kilograms but less than 50 kilograms.” If, on the other hand, the jury did


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not convict Melgar of the greater offense, it was to move on to consider whether

he was guilty of the lesser included offense of possession of at least 500 grams of

cocaine with intent to distribute. 1 The jury found Melgar guilty of possession of

at least five kilograms with intent to distribute and, furthermore, concluded the

offense had involved at least fifteen but less than fifty kilograms of cocaine.

      The presentence report (“PSR”) prepared in advance of the sentencing

hearing noted that Melgar had been arrested with approximately thirty-one


      1
        The quantity determinations submitted to the jury in the special verdict
form track both the enhanced statutory penalties set out in § 841 and the
provisions of the Guidelines setting base offense levels by reference to the
quantities of drugs involved in the conviction. See 21 U.S.C. 841(b)(1)(A)(ii)
(providing, inter alia, for a ten-year minimum mandatory sentence for violations
of § 841(a) involving at least five kilograms of a mixture or substance containing
a detectible amount of cocaine); id. § 841(b)(1)(B)(ii) (providing, inter alia, for a
five-year minimum mandatory sentence for violations of § 841(a) involving at
least 500 grams of a mixture or substance containing a detectible amount of
cocaine); U.S.S.G. § 2D1.1(c)(3) (setting the base offense level at 34 for drug
crimes involving at least fifteen kilograms but less than fifty kilograms of
cocaine); id. § 2D1.1(c)(4) (setting the base offense level at 32 for drug crimes
involving at least five kilograms but less than fifteen kilograms of cocaine). To
subject a defendant to the enhanced statutory penalties set out in § 841(b)(1)(A)
and (B), the qualifying drug quantity must be set out in the indictment, submitted
to the jury, and proven beyond a reasonable doubt. United States v. Jones, 235
F.3d 1231, 1236-37 (10th Cir. 2000). It appears the district court submitted drug
quantity determinations to the jury that are relevant solely to arriving at a
sentence under the Guidelines out of a prescient concern for the validity of the
district court’s role in fact-finding at sentencing under the Guidelines after the
Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). The
district court’s concern for the validity of the then-extant Guidelines scheme,
which empowered district courts to make factual determinations under a
mandatory Guidelines scheme, turned out to be correct. See generally United
States v. Booker, 125 S. Ct. 738 (2005).

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kilograms of cocaine in his possession. The PSR further noted that this drug-

quantity finding was consistent with the jury’s determination that the crime of

conviction had involved at least fifteen but less than fifty kilograms of cocaine.

As to Melgar’s physical condition, the PSR noted as follows:

      Melgar described his overall health as good. He is not taking any
      prescription medication and denied any current health problems.
      Melgar is currently in the process of undergoing a sex change and is
      comfortable discussing the matter with correctional personnel. With
      respect to his physical body, he was born a female but he views
      himself as a male. He previously had mastectomies in preparation
      for the final surgical procedures necessary to alter his genitals. He
      stated that he believes he will need to take male hormones after the
      surgeries. He hopes the process can be completed at some point in
      the future. While detained on these charges, he was assigned to a
      female unit of the jail because he still retains female genitals. He
      was confined to a cell most of the time because of harassment from
      other female inmates. At one point, he was confined to [the] medical
      unit . . . as a solution to the unique assessment problem he presents.

      At the sentencing hearing, the district court began by noting the Guideline

range for possession of at least fifteen kilograms but less than fifty kilograms of

cocaine, when coupled with Melgar’s criminal history category of I, was 151 to

188 months. The district court inquired as to whether both Melgar and the

government had reviewed the PSR; both indicated they had. Both also indicated

there were no objections to the PSR and no legal or factual issues were in dispute.

Accordingly, the district court accepted the PSR as its findings of fact. Noting

that neither party had requested a departure, the district court asked the parties to



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address the court as to the proper sentence within the Guideline range. Melgar’s

counsel argued as follows:

             Your Honor, given Mr. Melgar’s unique situation and the facts
      of this case, which are not particularly aggravating, I would ask that
      the Court consider a sentence towards the low end of the range. The
      low end of the range does constitute a significant portion of Mr.
      Melgar’s life and would, in my opinion, be adequate punishment for
      the acts that were committed. For those reasons, I would ask that
      you consider something towards the low end of the range.

The government, on the other hand, asked the district court to impose a sentence

at the high end of the range. According to the government, the following three

considerations justified a sentence at the high end of the range: (1) the very large

quantity of drugs involved in the offense; (2) evidence that Melgar had been

involved in drug trafficking for some time; and (3) Melgar’s continued

involvement in drug trafficking after a prior brush with the law indicated a

significant sentence was necessary to convince Melgar to reform his ways. The

district court imposed a 151-month sentence and simply indicated as follows: “A

sentence of 151 months is appropriate because there are no aggravating factors

that warrant a sentence at the middle or high end of the range.”

      On appeal, Melgar asserts that the district court erred when it applied the

Guidelines in a mandatory fashion in calculating his sentence. Booker, 125 S. Ct.

at 769. Accordingly, Melgar requests that this court reverse and remand to the

district court for a new sentencing proceeding at which the district court can


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exercise its discretion to impose a sentence below the range set out in the

Guidelines.

      In Booker, the Supreme Court held that the Sixth Amendment requires as

follows: “[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 must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Id. at 756. Booker makes clear that a court imposing a sentence by

application of the mandatory Sentencing Guidelines could commit two types of

error: constitutional error and non-constitutional error. United States v.

Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc).

Constitutional Booker error results from a district court “relying upon judge-

found facts, other than those of prior convictions, to enhance a defendant’s

sentence mandatorily.” Id. at 731. Non-constitutional error results from a district

court’s mandatory application of the Guidelines in contravention of the remedial

portion of the Supreme Court’s decision in Booker which renders the Sentencing

Guidelines advisory only. Booker, 125 S. Ct. at 764-65.

      Because Melgar raises his argument for the first time on appeal, we review

his sentence for plain error. See United States v. Sierra-Castillo, 405 F.3d 932,

941 (10th Cir. 2005) (detailing four-part plain error test). Given that the jury

found the requisite quantity of drugs necessary to establish a base offense level of


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34, Melgar does not argue that the district court committed constitutional Booker

error in calculating his sentence. Instead, he argues the district court committed

non-constitutional Booker error when it applied the Guidelines in a mandatory

fashion. As appropriately conceded by the government, the district court did

commit non-constitutional Booker error in arriving at Melgar’s sentence by

applying the Sentencing Guidelines in a mandatory fashion. Gonzalez-Huerta,

403 F.3d at 731-32. Mandatory application of the Guidelines is an error that is

plain, thus satisfying the first two prongs of the plain-error test. Id. at 732.

      Melgar cannot, however, satisfy the third prong of the plain error test. The

third prong of the plain-error test focuses on whether the error at sentencing

affected Melgar’s substantial rights. For an error to have affected substantial

rights, it “must have been prejudicial: It must have affected the outcome of the

district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993).

The burden to establish prejudice is on Melgar, the party who failed to raise the

issue below. Gonzalez-Huerta, 403 F.3d at 731. He can make the requisite

showing by demonstrating a “reasonable probability” that the defects in his

sentencing altered the result of the proceeding, i.e., that had the district court

applied the post-Booker sentencing framework, he would have received a lesser

sentence. United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005).

In cases of non-constitutional Booker error, like the case at hand, we apply this


                                           -7-
standard particularly rigorously. United States v. Dazey, 403 F.3d 1147, 1175 &

n.4 (10th Cir. 2005).

      A review of the record in this case reveals nothing indicating a reasonable

likelihood the district court would have imposed a lesser sentence if it had been

operating under the post-Booker, discretionary sentencing regime. Melgar argues

there were substantial questions raised at trial concerning the quantity and

composition of the drugs found in his possession which reasonably could have

affected the district court’s sentencing decision under a post-Booker framework.

It is certainly true that Melgar’s counsel vigorously cross-examined the DEA

chemist at trial as to his calculations regarding the quantity and quality of cocaine

found in Melgar’s vehicle. What Melgar fails to grasp, however, is that faced

with this conflicting evidence, the jury nevertheless found beyond a reasonable

doubt that Melgar possessed at least fifteen kilograms of cocaine. In light of the

jury’s specific finding on this question, and absent any indication on the part of

the district court that it had any doubts about the jury’s quantity determinations,

this court fails to see how questions regarding the chemist’s quantity and quality

determinations demonstrate a reasonable probability that the district court would

impose a lesser sentence if it were operating under a discretionary sentencing

regime.




                                          -8-
      Nor does Melgar’s status as a mid-process, female-to-male transsexual

demonstrate a reasonable likelihood that the district court would impose a

different sentence under a discretionary sentencing system. Other than the

paragraph from the PSR quoted above, the record in this case is absolutely bare of

any meaningful indications of exactly what unique hardships Melgar will face in

prison. This court made clear in Gonzalez-Huerta, that it is the defendant’s

burden to demonstrate that his substantial rights were affected at the third-prong

of the plain error test and that he must carry that burden solely with reference to

the record on appeal. 403 F.3d at 733 & n.4. The brief paragraph in the PSR is

simply not sufficient to carry Melgar’s burden, particularly where there was no

indication on the part of the district court that absent the mandatory nature of the

Guidelines it would be inclined to pronounce a lesser sentence based on Melgar’s

transsexualism. This is especially true given the rigorous nature in which this

court evaluates the third prong of the plain error test in cases of non-

constitutional Booker error. Dazey, 403 F.3d at 1175 & n.4.

      Because Melgar has not pointed to anything in the record on appeal

demonstrating a reasonable likelihood the district court would impose a lesser

sentence under the post-Booker sentencing scheme, he has not met his burden at

the third prong of plain error review. Accordingly, the sentence imposed by the




                                          -9-
United States District Court for the Northern District of Oklahoma is hereby

AFFIRMED.

                                              ENTERED FOR THE COURT



                                              Michael R. Murphy
                                              Circuit Judge




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