                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         May 15, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-6347
          v.                                          (W. D. of Okla.)
 RAVON LARNELL PATTERSON,                         (D.C. No. CR-04-39-H)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


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


      RaVon Patterson appeals the 105-month sentence he received after pleading

guilty to armed bank robbery. He argues that the district court committed

reversible error by enhancing his sentence under the United States Sentencing

Guidelines. The government responds that Patterson waived his right to demand a

jury under United States v. Booker, 543 U.S. 220 (2005), when he pled guilty and


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order 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.
that any resulting sentencing error was harmless. We agree with the government

and AFFIRM.

                                  I. Background

      Patterson pled guilty in the Western District of Oklahoma to bank robbery.

The factual basis for that plea was set forth in the plea agreement:

      That on or about February 3, 2004, [Patterson] took money from the
      person or presence of a bank teller; that he did so using force, violence,
      and intimidation; that the money was under the care, custody, control,
      management and possession of MidFirst Bank . . . ; [and] that the
      deposits of MidFirst Bank were then insured by the Federal Deposit
      Insurance Corporation.

Vol. 1, Doc. 49, Pg. 2. During the plea colloquy, Patterson further explained that

he entered the bank with an accomplice and yelled for everybody to get down. He

also admitted two additional facts: (1) his accomplice did not say anything to the

people in the bank, and (2) the pair left with $568.

      Prior to sentencing, a Presentence Investigation Report (PSR) calculated

Patterson’s sentence under the Guidelines. The PSR began with a base offense

level of 20, which was then enhanced two levels for taking property of a financial

institution. See USSG § 2B3.1(a), (b)(1). The PSR also reported that Patterson’s

codefendant, Jesse Shaw, had hit the bank manager in the face, knocking out

teeth, and included a four-level enhancement for “serious bodily injury.” See id.

§ 2B3.1(b)(3)(B). With a three-level reduction for acceptance of responsibility,

the PSR recommended a total offense level of 23. Combined with Patterson’s

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Category V criminal history, this offense level yielded a guideline range of 84 to

105 months.

      Patterson objected to this analysis based on Blakely v. Washington, 542

U.S. 296 (2004), which was decided in June 2004, just two days after his guilty

plea. Patterson asked to continue his sentencing hearing until after the Supreme

Court issued an opinion in then-pending Booker, but the court denied this request

and sentenced Patterson on October 15, 2004.

      At that hearing, the court heard testimony from the bank manager,

describing his injuries, and rejected Patterson’s Blakely argument that the

Guidelines should not apply to his case. Following the calculation set forth in the

PSR, the court sentenced Patterson to 105 months in prison, the high end of the

guideline range. Although the court recognized Patterson’s “commitment to

turning around his life,” it concluded the sentence was appropriate in light of

Patterson’s recent, substantial criminal record that reflected “an ongoing level of

serious criminal activity.” Vol. II, Pg. 23.

                                    II. Analysis

      Patterson claims on appeal that the district court violated the Sixth

Amendment by enhancing his sentence under mandatory sentencing guidelines.

The Supreme Court in Booker, held that the mandatory application of sentencing

enhancements under the Guidelines violated a defendant’s Sixth Amendment right


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to a jury trial. 543 U.S. at 229. Although this situation did not arise in every

case, the Supreme Court imposed a sweeping remedy that made the Guidelines

advisory in all criminal cases, including those pending on appeal. Id. at 268.

Subsequent to Booker, we, like many other circuits, recognized that defendants on

appeal could raise constitutional and nonconstitutional challenges to a sentence

based on the mandatory application of the Guidelines. United States v. Gonzalez-

Huerta, 403 F.3d 727, 731 (10th Cir. 2005).

       Because the district court enhanced Patterson’s sentence based on facts not

found by a jury or admitted in the plea agreement, he raises both constitutional

and nonconstitutional claims. With respect to the former, the government

responds that Patterson waived his Sixth Amendment right to a jury trial at

sentencing when he pled guilty to the offense, so he should not be allowed to

raise a Sixth Amendment challenge on appeal. We agree.

       We recently held that where a defendant “waive[s], without qualification,

[his] right to a jury trial in [his] guilty plea, . . . [he] may not [on appeal] assign

as error the failure of the district court to afford [him] a jury determination of

facts relevant to sentencing.” United States v. Leach, 417 F.3d 1099, 1104 (10th

Cir. 2005). Here, Patterson waived in writing and in open court his right to a jury




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trial, with a waiver almost identical to the defendant’s in Leach. 1 Thus, we must

conclude on this authority that Patterson waived his right to have a jury determine

sentencing facts under a mandatory guideline scheme.

      This conclusion does not end the analysis because the waiver does not

include a waiver of Patterson’s right to be sentenced under an advisory guideline

regime. The government effectively concedes this argument, responding instead

that the error was harmless. Indeed, where a defendant raised a Blakely argument

below, as here, we review alleged Booker errors for harmlessness. United States

v. Marshall, 432 F.3d 1157, 1160 (10th Cir. 2005). “In non-constitutional

harmless error cases, the government bears the burden of demonstrating, by a

preponderance of the evidence, that the substantial rights of the defendant were

not affected.” Id. at 1162 (quotations omitted). However, “[a]n error with

respect to sentencing does not affect substantial rights when it did not affect the


      1
          In a document captioned Waiver of Jury Trial, Patterson stated:

      I, the undersigned defendant, having been fully advised of the charges
      against me and of my rights in connection with the charges, do hereby
      waive those rights, including my right to a trial by jury, and agree to
      enter a plea of guilty to the court as provided by Rule 11 of the Federal
      Rules of Criminal Procedure.

Vol. I, Doc. 47. In a separate Petition to Enter a Plea of Guilty, he acknowledged
that he understood he had “the right to a speedy and public trial by jury” and that
by pleading guilty he “will be found guilty without a trial and . . . will have given
up all of the above rights.” Vol. I, Doc. 48, Pg. 2. The court further confirmed
these waivers at the plea hearing.

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sentence imposed by the district court.” United States v. Ollson, 413 F.3d 1119,

1120 (10th Cir. 2005). We have repeatedly held that the government satisfies this

burden where the district court sentences at or near the top of the guideline range.

See, e.g., United States v. Paxton, 422 F.3d 1203, 1207–8 (10th Cir. 2005);

United States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005).

      Here, the district court concluded the guideline range was 84 to 105

months. Although it could have imposed a lower sentence, it exercised its

discretion to impose the maximum sentence it could: 105 months. Where the

judge “exercised his limited discretion under the pre-Booker system to give [the

defendant] the highest permissible sentence, there is no reason to think the judge

would exercise his now-greater discretion to reduce the sentence.” Riccardi, 405

F.3d at 876. Thus, we conclude that the nonconstitutional Booker error in this

case was harmless.

                                  CONCLUSION

      For these reasons, we AFFIRM.

                                               Entered for the court

                                               Timothy M. Tymkovich
                                               Circuit Judge




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