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

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,                        No. 05-1133
                                                  (D.C. No. 04-CR-411-B)
 vs.                                                     (D.Colo.)

 ROBERTS SCHUYLER BENNETT,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


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


       Defendant Roberts Schuyler Bennett pleaded guilty to possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and was sentenced to 71

months imprisonment, and three years supervised release. Although Mr.

Bennett’s offense and plea (December 3, 2004) occurred prior to the Supreme

Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), his sentencing

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
occurred subsequent to that decision, and the district court treated the Sentencing

Guidelines as advisory.

      On appeal, Mr. Bennett contends that the district court erred by sentencing

him based upon specific offense characteristics not contained in the count of

conviction of the indictment. According to Mr. Bennett, because the count of

conviction did not allege that 600 or more images were involved, or that some of

the images involved a prepubescent minor or portrayed sadistic or masochistic

conduct, the district court could not rely upon these facts in sentencing him. See

Aplt. Br. at 12; U.S.S.G. § 2G2.4(b)(1) (2003) (two-level enhancement for

material involving a prepubescent minor), § 2G2.4(b)(4) (four-level enhancement

for material portraying sadistic or masochistic conduct), § 2G2.4(b)(5)(D) (five-

level enhancement for 600 or more images). 1 Mr. Bennett makes this argument

even though (1) he stipulated to the all of the facts underlying these specific

offense characteristics and (2) the indictment (in a count which referenced the

count of conviction, but was later dismissed) contained these offense

characteristics. Mr. Bennett maintains that his sentence must be tethered to those


      1
        Mr. Bennett only takes issue with the additional three-levels of the five-
level enhancement under U.S.S.G. § 2G2.4(b)(5)(D), because the count of
conviction alleged at least ten images which would result in a two-level
enhancement under § U.S.S.G. § 2G2.4(b)(5)(A). Mr. Bennett argues that his
adjusted offense level should have been 19 resulting in a guideline range of 33-41
months (criminal history category of II), instead of 25 which indicates a guideline
range of 63-78 months.

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facts contained in the count he pleaded to, resulting in a maximum sentence of 41

months.

       In making this argument, Mr. Bennett invokes his Sixth Amendment right

to fair notice of the charges against him and his Fifth Amendment right to

indictment and grand jury presentment. He also relies upon the prohibition on

double jeopardy and argues that applying the remedial holding of Booker to his

offense would violate Griffith v. Kentucky, 479 U.S. 314 (1987).

      In a similar challenge involving a guilty plea and stipulated facts, we

recently held that the Apprendi line of cases (including Booker) does not require

that factors supporting sentencing enhancements be alleged in the indictment.

United States v. Glover, 413 F.3d 1206, 1208-09 (10th Cir. 2005). Like Mr.

Bennett, the defendant in Glover pleaded prior to the Court’s decision in Booker.

Thus, we must reject Mr. Bennett’s claim that the “indictment, or more

accurately, the facts alleged in the indictment’s count of conviction, capped any

possible sentence he could receive.” Aplt. Br. at 11.

      Mr. Bennett concedes that in the current advisory guideline system

mandated by Booker, his argument has no merit. Id.; II R. 9 (“Booker fixes it, but

it only fixes it prospectively.”); see also Booker, 125 S. Ct. at 761-62

(commenting on the difficulties of incorporating sentencing factors into

indictments were the guidelines mandatory). Instead, he argues that because he


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was indicted and pleaded guilty prior to Booker, the district court was limited to

sentencing him based upon facts alleged in the indictment’s count of conviction,

even though he would not be entitled to a jury on those facts, having waived any

such right. Aplt. Br. at 13. An obvious answer to this is that the facts serving as

the basis for the challenged enhancements were contained on the face of the

indictment, in a count that clearly referenced the count of conviction, thereby

obviating any concerns about presentment to a grand jury. Mr. Bennett plainly

had notice of those facts, having stipulated to them as part of the plea.

      Regardless, Mr. Bennett’s argument is an invitation not only to ignore his

admissions, but also to apply the substantive holding of Booker while

disregarding the remedial holding (making the guidelines advisory) that in fact

was applied in his case. This we cannot do. Booker, 125 S. Ct. at 769 (both

substantive and remedial holding must be applied to all cases on direct review);

United States v. Rines, No. 04-4182, 2005 WL 1953505 at * 2 (10th Cir. Aug. 16,

2005) (rejecting invitation to apply only substantive holding). Moreover, the

contended-for remedy in this case is precisely what the Supreme Court rejected in

Booker–the companion case, Fanfan, was remanded even in the absence of a Sixth

Amendment violation to apply the remedial holding. Booker, 125 S. Ct. at 769.

Finally, Mr. Bennett’s argument is inconsistent with the broad power of

sentencing courts to consider information beyond the indictment. 18 U.S.C.


                                         -4-
§ 3661; United States v. Watts, 519 U.S. 148, 152-53 (1997) (per curiam).

      The premise of Mr. Bennett’s remaining arguments is that the indictment

serves as a cap limiting any enhancement or departure under the guidelines. We

have rejected that premise. With that, we reject his arguments that applying

Booker to his case violates substantive due process, raises double jeopardy

concerns, contravenes retroactivity principles, or results in sentencing him to a

greater offense when he pleaded to a lesser.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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