                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        August 22, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-5007
          v.                                   Northern District of Oklahoma
 PATRICK WAYNE MANNING,                            (D.C. No. 03-CR-25-C)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      The Defendant, Patrick Manning, appeals the district court’s decision to

adjust his criminal history category upward on the basis of a murder charge for

which he was not tried. Mr. Manning raises two claims. First, he contends that

evidence of his involvement in the murder was not reliable enough to support

increasing his criminal history category from V to VI pursuant to U.S.S.G. §


      *
         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). This 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
4A1.3. Second, Mr. Manning argues that this upward departure, pursuant to

U.S.S.G. § 4A1.3, violates the Supreme Court’s holding in United States v.

Booker, 125 S.Ct. 738 (2005). We AFFIRM.

                                         I.

      Mr. Manning pleaded guilty to one count of misappropriation by a fiduciary

in violation of 38 U.S.C. § 6101(a). Applying the Guidelines, the presentence

report recommended an offense level of 12 and a criminal history category of V, a

combination that provides a sentencing range of 27 to 33 months. U.S.S.G. § 5A.

The government requested that the court depart upward from a criminal history

category of V to category VI because there was evidence to suggest that Mr.

Manning committed the murder of Patricia Bruder in Tulsa, Oklahoma during

May 1987.

      Mr. Manning had been charged with this homicide in Oklahoma state court

while he was incarcerated in the Kansas state prison system. The State of

Oklahoma failed to comply with the Interstate Agreement on Detainers and, for

this reason, the state court dismissed the charge. At sentencing in the instant

case, the district court heard testimony from the police officers who investigated

the Bruder murder and from witnesses who heard Mr. Manning admit to the

crime. After two hearings, the district court found, by a preponderance of the

evidence, that Mr. Manning had committed the murder and granted the motion for


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upward departure. Under the Guidelines, a base offense level of 12 and criminal

history category of VI provides a range of 30-37 months. U.S.S.G. § 5A. The

district court sentenced Mr. Manning at the top of this range—37 months.

                                         II.

                                         A.

      Mr. Manning’s first argument is that the government did not present

sufficiently reliable evidence of Mr. Manning’s involvement in the Bruder murder

to support an upward departure under U.S.S.G. § 4A1.3. Section 4A1.3(a)(1)

provides that “[i]f reliable information indicates that the defendant’s criminal

history category substantially under-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit other crimes, an

upward departure may be warranted.” When reviewing departures under § 4A1.3,

as with most other Guidelines questions, we review legal questions de novo and

factual matters for clear error “giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Doe, 398 F.3d 1254,

1257 (10th Cir. 2005) (quoting United States v. Tsosie, 376 F.3d 1210, 1217-18

(10th Cir. 2004)). Mr. Manning’s challenge to the reliability of the evidence is a

purely factual question. He contends that inconsistencies in the testimony

presented and the difficulty of recalling events that took place 16 years prior to

the two sentencing hearings render the information unreliable. Our review of


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these factual questions is limited to clear error, so we may reverse a finding only

if it “was without factual support in the record or we are left with the definite and

firm conviction that a mistake has been made.” United States v. Ryan, 236 F.3d

1268, 1273 (10th Cir. 2001).

      The government presented testimony from several witnesses. Charles Folks

was a Tulsa Police Department Officer for 28 years and was with the

robbery/homicide unit in 1987. He recounted his role in investigating the Bruder

murder after reviewing contemporaneous reports. He testified that at

approximately 8:40 p.m. on May 19, 1987, Ms. Bruder was working the checkout

counter at a May’s Drug Store. After hearing a gunshot, employees of the store

rushed to the counter and found Ms. Bruder laying dead in a pool of blood with an

entry wound just to the left of the tip of her nose. Investigators found a .380

caliber shell casing on the floor in front of the counter and two witnesses

described seeing an African-American male running from the store.

       Approximately one hour after the Bruder murder a robbery took place at

Guy Henshall’s Auto Parts Store. According to the clerk, the robber shot a bullet

into the ceiling from a small, shiny, semiautomatic pistol with black grips. A

.380 caliber shell casing was found on the floor and ballistics reports would later

reveal that this casing came from a pistol with serial number T08207, the same

pistol used in the Bruder murder. The clerk described the robber as an African-


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American male approximately 15 to 18 years old and 5’8” to 5’9” in height. Mr.

Manning is an African-American male who was 23 at the time of the murder and

robbery and is 5’7” tall.

      The investigation stalled until June 1988 when Investigator Folks learned

that Victor J. Cooper was in custody in Oklahoma City and was willing to

exchange testimony about the Bruder murder for more lenient treatment. Mr.

Folks interviewed Mr. Cooper twice and the second interview was video recorded

and transcribed; the videotape was played for the district court and the transcript

was admitted into evidence. In this second interview, Mr. Cooper stated that Mr.

Manning admitted to robbing a Guy Henshall’s and the Bruder murder. He stated

that Mr. Manning confessed to the Bruder murder at the home of Mr. Cooper’s

girlfriend, Mary Hutton. Mr. Cooper recalled that Mr. Manning said he used a

.380 magnum to shoot the woman after she twice refused to open the cash

register. Mr. Cooper had seen Mr. Manning with a .380 chrome automatic pistol

with black grips as the gun belonged to Manning’s girlfriend, Jan Griffin, with

whom Mr. Manning was living at the time of the Bruder murder.

      Ms. Griffin, now deceased, was interviewed on June 25, 1988. The district

court heard an audio tape of this interview and a transcript was admitted into

evidence. She stated that she owned a .380 pistol with serial number T08207

during the time Mr. Manning lived with her and she said that she saw Mr.


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Manning handling the gun on one occasion. The government admitted this gun

during the sentencing hearing as Government’s Exhibit 8.

      Ms. Hutton testified at the sentencing hearing after reviewing an audio tape

of a statement she made on July 14, 1992. She stated that while she was living

with Mr. Cooper there was a night in 1987 when Mr. Manning came to the

apartment and asked to speak to Mr. Cooper. Ms. Hutton recalled that Mr.

Manning looked frightened and spoke with Mr. Cooper at the door. Ms. Hutton,

who had answered the door, listened to their conversation from the top of the

stairs. She stated that Mr. Manning confessed to killing someone at point blank

range at a May’s Drug Store. Mr. Manning said he shot her because she refused

to open the cash register.

      Mr. Cooper also testified at the sentencing hearing. He recanted his earlier

statements regarding Mr. Manning’s involvement in the murder and asserted that

he lied to investigators in order to benefit from a plea deal. He testified that on

the night Mr. Manning visited him in 1987, he told Mr. Cooper that he and “a

friend” had robbed a May’s Drug store and the “friend” had shot the clerk. R.

Vol. IV at 20. Mr. Cooper was unable to provide a name or a description of this

alleged perpetrator. After describing Mr. Cooper as “a really good liar,” the

district court found that his testimony recanting his earlier statement was “simply

not believable.” Id. at 58, 64. Moreover, after considering all the evidence the


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district court felt “that evidence has clearly established” that Mr. Manning

committed the murder and adjusted his criminal history accordingly. Id. at 64.

      Mr. Manning argues that the information on which the district court relied

was not reliable enough to justify its conclusion. He complains the testimony

presented contained inconsistencies and, in some measure, required recollection

from too long ago to be reliable. These arguments, however, are insufficient to

meet the daunting standard for demonstrating that the district court committed

clear error. To reverse we must have a firm and definite conviction that the

district court misinterpreted the evidence presented. Mr. Manning’s arguments

about the reliability of the evidence do little to call the district court’s careful

consideration of the facts into doubt, and certainly do not leave us with a strong

belief that a mistake has been made. For example, Mr. Manning complains that

the ballistics report does not prove anything about the shooter. This is, of course,

true, but the district court considered the ballistics reports as part of a wide array

of circumstantial evidence suggesting that Mr. Manning committed the murder.

The limitations of the ballistics report do not undermine the conclusions that the

district court drew from other sources of evidence. Mr. Manning also argues that

the district court improperly credited the testimony of Ms. Griffin, Mr. Cooper,

and Ms. Hutton. But unless Mr. Manning demonstrates that this testimony was

“unbelievable on its face,” which he does not, the credibility determinations of


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the district court are “virtually unreviewable” on appeal. United States v.

Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003). Accordingly, we

disagree with Mr. Manning’s contention that the district court clearly erred when

it determined that he committed the murder of Ms. Bruder.

                                          B.

      Mr. Manning also argues that the imposition of the upward departure

violated his Sixth Amendment rights as articulated by the Supreme Court in

United States v. Booker, 125 S.Ct. 738 (2005). Mr. Manning did not raise this

claim during sentencing so we review for plain error. United States v. Gonzalez-

Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). To demonstrate plain error

Mr. Manning must show that: (1) there was error, (2) that was plain, (3) that

affected his substantial rights, and (4) failing to correct the plain error would

affect the fairness, integrity, or public reputation of judicial proceedings. United

States v. Cotton, 535 U.S. 625, 631-32 (2002). In analyzing plain error under

Booker this Court has identified two types of errors, constitutional error and non-

constitutional error. See Gonzalez-Huerta, 403 F.3d at 731-32. Both types of

error are present in Mr. Manning’s sentence, but neither meets the substantial

showing necessary for a remand on plain error review. We begin by discussing

constitutional error before turning to non-constitutional error.




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      In Booker, the Court held that, in the context of mandatory sentencing

guidelines, the Sixth Amendment requires “[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.” 125

S.Ct. at 756. The maximum sentence permitted by the facts admitted in Mr.

Manning’s guilty plea was 33 months. The district court determined that Mr.

Manning was responsible for the murder of Ms. Bruder, although he was not

convicted of this crime. On the basis of this finding the court increased his

criminal history category, which permitted the court to sentence Mr. Manning to

37 months of imprisonment. This finding was not established by a jury’s verdict

or admitted by the defendant, and it was not a prior conviction. Accordingly, it

violated the Sixth Amendment to sentence Mr. Manning for term over 33 months

on this basis.

      Our Booker cases establish that this type of error is plain. See United

States v. Dazey, 403 F.3d 1147, 1174-75 (10th Cir. 2005). Our preferred

approach in these types of cases is to follow the Supreme Court’s example in

United States v. Johnson, 520 U.S. 461, 469-70 (1997), and analyze the fourth

prong of plain error before determining whether the error prejudiced the




                                         -9-
defendant. See, e.g., United States v. Lawrence, 405 F.3d 888, 906-08 (10th Cir.

2005).

         The district court’s decision to sentence Mr. Manning at the top of the

adjusted Guidelines range essentially forecloses any showing that failing to

remand his sentence would threaten the fairness, integrity, or public reputation of

judicial proceedings. We addressed a virtually identical situation in United States

v. Mozee, 405 F.3d 1082, 1091-92 (10th Cir. 2005), where we affirmed the district

court’s decision to sentence the defendant at the top of the Guidelines range

despite the presence of constitutional Booker error. In Mozee, we reasoned that

because the district court exercised its discretion under the Guidelines by

maximizing the defendant’s sentence, there was no reason to believe that the

defendant would receive a lesser sentence under the post-Booker sentencing

regime, under which sentencing courts apply the Guidelines in an advisory

fashion. Id. (quoting Booker, 125 S.Ct. at 764). Likewise, in Mr. Manning’s case

there is little reason to believe that, under a system that grants more discretion to

sentencing courts, Mr. Manning would receive a lesser sentence when the district

court maximized the allowable sentence in the initial proceeding. 1 Accordingly,




        Indeed, because the district court had a firm belief that Mr. Manning
         1

perpetrated the murder of Ms. Bruder, it is possible that, had the judge not been
tethered to the Guidelines framework, Mr. Manning might have received a
sentence in substantial excess of 37 months.

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there is little reason to believe that failing to remand would burden the fairness,

integrity, or public reputation of judicial proceedings.

        We also note that exercising our discretion under the fourth prong of plain

error analysis to notice the constitutional error in Mr. Manning’s case would

introduce an anomaly to our Booker jurisprudence. We have held that Booker

does not alter the ability of sentencing courts to increase a defendant’s sentence

on the basis of acquitted conduct as long as the government demonstrates

responsibility for the acquitted conduct by a preponderance of the evidence.

United States v. Magallanez, 408 F.3d 672, 683-85 (10th Cir. 2005). It would be

odd if we refused to grant Booker remands for acquitted conduct, but allowed

remands where, as is the case with Mr. Manning, the defendant was never tried.

If Mr. Manning had gone to trial on the murder charge and been acquitted, the

district court still could have predicated an increase in his sentence on this crime

if the government demonstrated his guilt by a preponderance of the evidence.

This principle reinforces our conclusion that a remand is not appropriate in this

case.

        There is also non-constitutional error present in Mr. Manning’s sentence.

Non-constitutional error occurs when a sentencing court applies the Guidelines in

a mandatory fashion rather than in the advisory manner required by the remedial

opinion in Booker. See Gonzalez-Huerta, 403 F.3d at 731-32. By treating the


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calculated Guidelines range as mandatory the district court committed error that

was plain. Id. at 732. As with constitutional Booker errors, our practice is to

analyze the fourth prong of non-constitutional Booker error to determine if the

prejudice analysis is necessary. Id. at 736.

      The burden placed on Mr. Manning to satisfy the fourth prong of plain

error in non-constitutional cases is high. He must demonstrate that the non-

constitutional error that affected his sentence presents a “particularly egregious”

circumstance. United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997). We

will not remand for resentencing unless we believe that the non-constitutional

error in Mr. Manning’s case presents one of “those rare cases in which core

notions of justice are offended.” Gonzalez-Huerta, 403 F.3d at 739. Mr.

Manning received a sentence at the top of the applicable Guidelines range, so the

mandatory nature of the Guidelines could only have restrained the district court

from imposing an even longer sentence. Mr. Manning points to nothing in the

record that renders the decision to sentence him at the top of the range

particularly egregious. See Magallanez, 408 F.3d 686 (refusing to remand

because no record evidence supported a lower sentence). Thus, a remand to

correct the non-constitutional error in his sentence would not be appropriate.




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                                III.

For the reasons stated above we AFFIRM the judgment of the district court.



                                           Entered for the Court


                                           Michael W. McConnell
                                           Circuit Judge




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