                                                                           F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                          October 10, 2006
                                    T E N T H C IR C U IT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 U N ITED STA TES O F A M ER ICA ,

          Plaintiff - Appellee ,

 v.                                                          No. 05-6328
                                                          ( W .D. Oklahoma )
 D O U G LAS LEE M cD O N A LD ,                      (D.Ct. No. CR-03-187-01 )

          Defendant - Appellant .




                              O R D E R A N D JU D G M E N T *


Before H E N R Y , B R ISC O E , and O ’B R IE N , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On November 5, 2003, Douglas Lee M cDonald pled guilty to one count of




      *
          This order and judgment is not binding precedent except under the doctrines of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.
bank fraud in violation of 18 U.S.C. § 1344(2). M cDonald entered his plea

without the benefit of a plea agreement. The Presentence Investigation Report

(PSR) determined the applicable guideline range w as 70 to 87 months, before

factoring in its recommendation for a three point reduction for acceptance of

responsibility. M cD onald challenged various factual matters in the PSR. On

April 26, 2004, the district court denied the recommended downward adjustment

for acceptance of responsibility and sentenced M cDonald to 87 months

imprisonment. M cDonald appealed the sentence, arguing, inter alia, the amount

of intended loss was miscalculated resulting in a higher sentencing range. W e

agreed and remanded the case for resentencing. See United States v. M cDonald,

141 Fed. Appx. 740 (10th Cir. 2005). W e did not address M cDonald’s challenge

to his sentence based on United States v. Booker, 543 U.S. 220 (2005).

M cDonald, 141 Fed. Appx. at 742 n.1. On September 15, 2005, the district court

on remand again denied the downward adjustment for acceptance of

responsibility, as well as the government’s motion for an upward departure, and

sentenced Douglas to 71 months imprisonment. 1 In this appeal, M cDonald

challenges the district court’s refusal to grant him a downward adjustment for

acceptance of responsibility and argues his sentence violates Booker. W e exercise


      1
        Absent the three point downward adjustment for acceptance of responsibility, the
guideline range was 51 to 71 months imprisonment. This was based on a criminal history
category of VI and an offense level of 18.

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jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and AFFIRM .

D iscussion:

I. Acceptance of Responsibility

      M cDonald argues he is entitled to the downward adjustment for acceptance

of responsibility because he “never denied his conduct relating to what was

charged in the indictment” and the “government was never required to make its

proof to the matters charged against the defendant.” (A ppellant’s Br. at 8.)

      “On appeal from a district court’s sentencing under the Federal Sentencing

Guidelines, we review the district court’s supporting factual findings under the

clearly erroneous standard, and review disputed legal issues de novo.” United

States v. Levy, 992 F.2d 1081, 1083 (10th Cir. 1993). W e give “due deference to

the district court's application of the guidelines to the facts.” United States v.

Patron-M ontano, 223 F.3d 1184, 1188 (10th Cir. 2000). “A district court’s

factual finding is clearly erroneous only if it is without factual support in the

record or if this court, after reviewing all the evidence, is left with a definite and

firm conviction that a mistake has been made.” Id. (quotations and citation

omitted).

      Section 3E1.1(a) of the United States Sentencing G uidelines allow s a

defendant a downward adjustment of his offense level “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense . . . .” Application note



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1(a) clarifies that a defendant must “truthfully admit[] the conduct comprising the

offense(s) of conviction, and truthfully admit[] or not falsely deny[] any

additional relevant conduct for which the defendant is accountable” in order to

obtain the downward adjustment. Application note 1(a) also points out, “a

defendant who falsely denies, or frivolously contests, relevant conduct that the

court determines to be true has acted in a manner inconsistent with acceptance of

responsibility.”

      At the original sentencing proceeding, M cDonald challenged various

factual statements in the PSR, including his drafting of an insufficient check in

the amount of $10,000 and threatening Jim W einrich, who sold M cDonald a house

paid for by a check with insufficient funds. M cDonald also withdrew previous

objections to the PSR’s inclusion of an alias and its statement regarding his

occupation of certain premises. In response, the government had to call three

witnesses to testify to the validity of the factual assertions made in the PSR.

      At the close of the hearing, the district court listed its reasons for denying a

downward adjustment for acceptance of responsibility. Relying on the limitations

in Application note 1(a), the district court held M cDonald had frivolously

contested relevant conduct determined to be true by the district court:

      M r. M cDonald has denied, in several respects, factual matters in the
      presentence report, one of which has been withdrawn with his now
      admission that he did use a particular alias, though he denied that in
      the presentence report. A defendant is responsible for the positions

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      taken in that report. He has otherw ise disputed factual matters . . .
      regarding the checks that have been proven to be false. I have no
      reason to doubt [the testimony about] the circumstances regarding the
      threat. This is something that this defendant has denied, and falsely
      so, in this Court’s judgment. And certainly . . . his denial that he did
      not occupy the premises was quite conclusively proven to be a false
      denial.

(R. Vol. II at 64-65.) At the resentencing hearing, the district court stated:

      [A]ll the aspects of [this] issue were carefully considered by the
      Court at the time of [M cD onald’s] previous sentence and . . . very
      carefully explained . . . and the Court has nothing to add to that nor
      any reason to . . . revisit it. . . . The facts haven’t changed, . . . the
      decision of the Court at the time w as justified, there’s nothing before
      the Court to suggest that it be any different, and the . . . request is
      denied for the same reasons that the Court articulated previously, and
      . . . a reviewing court would be referred to those reasons.

(R. Vol. III at 5-6.) Based on the record before us, the district court did not

clearly err in denying M cDonald a downward adjustment for acceptance of

responsibility.

II. Booker

      M cDonald was originally sentenced on April 26, 2004, prior to the Supreme

Court’s decision in Booker. However, M cDonald’s resentencing occurred on

September 15, 2005, after Booker was decided. On appeal, M cDonald argues his

“Sixth Amendment rights were violated by the imposition of a sentence beyond

that which could have been imposed solely on the basis of the facts he admitted.”

(Appellant’s Br. at 10.)

      Although M cDonald raised Booker in his initial appeal, he did not raise it

                                          -5-
in either his initial sentencing or resentencing. Thus we review for plain error.

F ED . R. C RIM . P. 52(b).

       Contrary to a common misconception, the effect of Booker was not to

prohibit judicial fact-finding during sentencing. United States v. Lawrence, 405

F.3d 888, 890 (10th Cir.), cert. denied, 126 S.Ct. 468 (2005). Rather it simply

rendered the guidelines advisory. See U nited States v. M ontgomery, 439 F.3d

1260, 1262 (10th Cir. 2006); United States v. Labastida-Segura, 396 F.3d 1140,

1142 (10th Cir. 2005). In imposing the present sentence, the district court

specifically noted “the guidelines are advisory.” (R. Vol. III at 6.) Thus there

was no Sixth Amendment error. W e decline the invitation to hold the remedy

imposed in Booker inadequate to correct its finding of a Sixth Amendment

violation.

       W e also note that “[i]f . . . the district court properly considers the relevant

Guidelines range and sentences the defendant within that range, the sentence is

presumptively reasonable.” United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). Such is the case here. M cDonald does not argue on appeal that his

sentence was unreasonable.

A FFIRME D.

                                         E ntered by the C ourt:

                                         T errence L. O ’B rien
                                         United States Circuit Judge




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