                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      July 15, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 07-7088
          v.                                          (E.D. Oklahoma)
 CURRY ADOYLE DAWSON,                        (D.C. No. 6:07-cr-00016-RAW-5)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Curry Adoyle Dawson pleaded guilty in the United States District Court for

the Eastern District of Oklahoma to possession of a firearm in furtherance of a

drug-trafficking crime, see 18 U.S.C. § 924(c)(1)(A). The presentence report

(PSR) stated that Mr. Dawson had cocked his gun and held it to the victim’s head.

Mr. Dawson did not object to this statement in the PSR, but at the sentencing

hearing he disputed that he had put a gun to the victim’s head. The district court


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
decided not to resolve the issue, because it would not impact its sentencing

calculation. The court sentenced Mr. Dawson to seven years’ imprisonment. On

appeal Mr. Dawson contends that (1) he was not subject to a mandatory minimum

sentence of seven years under 18 U.S.C. § 924(c)(1)(A)(ii), which provides for

that minimum when the firearm is “brandished,” because “brandishing” is a

separate element of the offense that must be proved to a jury; and (2) the district

court should have appended to the PSR a written determination that it was not

resolving the factual dispute raised at the sentencing hearing. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

      Mr. Dawson concedes that his first contention is foreclosed by the Supreme

Court’s decision in Harris v. United States, 536 U.S. 545 (2002), so we need not

elaborate further on that issue.

      As for Mr. Dawson’s second contention, he claims that under Fed. R. Crim.

P. 32(i)(3)(C) the district court should have appended to the PSR a determination

that a ruling on the factual dispute raised at the sentencing hearing was

unnecessary. 1 But he did not raise this issue below. Therefore, we review for

      1
      Fed. R. Crim P. 32(i)(3) states:
      Court Determinations. At sentencing, the court:
            (A) may accept any undisputed portion of the presentence
            report as a finding of fact;
            (B) must—for any disputed portion of the presentence report
            or other controverted matter—rule on the dispute or determine
            that a ruling is unnecessary either because the matter will not
            affect sentencing, or because the court will not consider the
                                                                      (continued...)

                                         -2-
plain error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005).

         “Plain error occurs when there is (1) error, (2) that is plain, which (3)

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

public reputation of the judicial proceedings.” Id. (internal quotation marks

omitted). Without reviewing the first two prongs, we affirm on the third. “[T]o

have affected substantial rights, the error must have been prejudicial.” United

States v. Romero, 491 F.3d 1173, 1179 (10th Cir. 2007) (internal quotation marks

omitted). Mr. Dawson has failed to show prejudice. He suggests that the Bureau

of Prisons (BOP) will use against him the statement in the PSR that he held a gun

to the victim’s head, and he states that an addendum to the PSR “would have

ensured the [BOP] would know he denied putting a gun to [the victim’s] head,

and that the district court had not found to the contrary.” Aplt. Reply Br. at 3.

But he can provide the BOP with a copy of the sentencing transcript (or this

opinion) reciting that the district court made no finding on the matter. In fact, the

court stated:

         Well, I understand that the defendant is not in agreement with the
         part of the presentence report that he says he put the gun to the

         1
             (...continued)
                   matter in sentencing; and
                   (C) must append a copy of the court’s determinations under
                   this rule to any copy of the presentence report made available
                   to the Bureau of Prisons.


                                              -3-
      head. . . . And I understand that and I want to say that on the record
      so you can have that disagreement public and on the record. It
      doesn’t make any difference, you understand, as far as the actual
      sentence goes.

R. Vol. 3 at 7–8. Moreover, Mr. Dawson has not shown why he cannot request

the district court to resolve this matter by filing a motion under Fed. R. Crim.

P. 36 (“After giving any notice it considers appropriate, the court may at any time

correct a clerical error in a judgment, order, or other part of the record, or correct

an error in the record arising from oversight or omission.”).

      We AFFIRM the sentence and judgment of the district court.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




                                          -4-
