                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                    PUBLISH
                                                                     August 17, 2005
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,
                                                     No. 03-2183
             Plaintiff-Appellee,
                                                   (CR-02-1791 MV)
                                                      (D. N.M.)
v.

SERGIO DURAN BADILLA,

             Defendant-Appellant.




                        ON REMAND FROM THE
                    UNITED STATES SUPREME COURT


John D. Kaufmann, Attorney at Law, Tucson, Arizona, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, Norman Cairns, Assistant United States Attorney,
on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.



Before SEYMOUR, HOLLOWAY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
      Sergio Duran Badilla was convicted by a jury of a single count of

knowingly and intentionally possessing more than one hundred kilograms of

marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)

and 18 U.S.C. § 2. The district court sentenced Badilla to seventy-eight months’

imprisonment and four years’ supervised release. Badilla brought an appeal to

this court and raised the following three claims: (1) the district court erred in

giving the jury an instruction allowing it to infer that Badilla knew about the

presence of the marijuana in his vehicle because he was the driver and occupant

of the vehicle; (2) the district court should have suppressed the marijuana as the

fruit of an illegal search; and (3) the district court erred when it increased his

base offense level by two levels for obstruction of justice. This court rejected

Badilla’s claims of error and affirmed both his conviction and his sentence.

United States v. Badilla, 383 F.3d 1137 (10th Cir. 2004). Badilla petitioned the

Supreme Court for a writ of certiorari. The Court granted certiorari, vacated our

judgment, and remanded the case to this court for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005). For the reasons set out below, we

reinstate all portions of our prior decision with the exception of footnote two and

again affirm Badilla’s conviction and sentence.

      This court asked the parties to file supplemental briefs addressing the

impact of Booker on this case. In his supplemental Booker brief, Badilla asserts


                                          -2-
as follows: (1) Booker mandates a reconsideration of the propriety of permissive

inference jury instructions; and (2) pursuant to Booker, the district court erred in

enhancing his sentence on the basis of judge-found facts. We address these

assertions in turn.

      Badilla was stopped at a permanent Border Patrol checkpoint in New

Mexico. Badilla, 383 F.3d at 1139. He was the sole occupant of a pick-up truck

that contained 217 kilograms of marijuana in a hidden compartment under the

truck bed. Id. Badilla testified at trial that he was unaware of the marijuana until

informed of its presence by the Border Patrol agents. Id. As to Badilla’s

knowledge, the district court instructed the jury as follows: “[w]ith respect to the

question of whether or not a defendant knew that the controlled substance was

present, you may—but are not required to—infer that the driver and sole occupant

of a vehicle has knowledge of the controlled substance within it.” Id. (quotation

omitted). The district court further instructed the jury that

      (1) it must consider the jury instructions as a whole; (2) it should not
      assume that anything the judge said during trial expressed his opinion
      concerning the issues in the case; (3) it must arrive at its own fact
      findings; (4) it must consider all of the evidence; and (5) the
      government had the burden of proving Badilla’s guilt beyond a
      reasonable doubt.

Id. at 1139-40.

      On appeal from his conviction, Badilla argued that the district court had

erred in giving the jury the permissive inference instruction. Id. at 1140. This

                                          -3-
court rejected Badilla’s contention, concluding that in the context of this

particular case, the permissive inference instruction “[did] not undermine the

jury’s ability to deliberate, [did] not prevent the jury from considering all the

evidence in the case, [did] not dilute the government’s burden of proving guilt

beyond a reasonable doubt, and [did] not shift the burden of proof to Badilla.” Id.

at 1141. In reaching this result, we relied on the Supreme Court’s decision in

County Court of Ulster County v. Allen, 442 U.S. 140 (1979). In Ulster County,

the Court specifically noted that it “has required the party challenging [a

permissive inference] to demonstrate its invalidity as applied to him.” Id. at 157.

      Because [a] permissive presumption leaves the trier of fact free to
      credit or reject the inference and does not shift the burden of proof, it
      affects the application of the “beyond a reasonable doubt” standard
      only if, under the facts of the case, there is no rational way the trier
      could make the connection permitted by the inference. For only in
      that situation is there any risk that an explanation of the permissible
      inference to a jury, or its use by a jury, has caused the presumptively
      rational factfinder to make an erroneous factual determination.




                                          -4-
Id. Based on the facts adduced at trial, 1 this court concluded that “the inference

of Badilla’s knowledge of the hidden drugs [was] more likely than not to flow

from the undisputed fact of his sole possession of the truck.” Badilla, 383 F.3d at

1140. Accordingly, we rejected Badilla’s challenge to the permissive inference

instruction. Id. at 1140-41.

      In his supplemental brief, Badilla argues that this court’s previous analysis

of the permissive inference instruction is no longer sound in light of the decision

in Booker. In particular, Badilla asserts that this court’s resolution of his

permissive-inference claim relied on a “judicial non-jury determination that one

fact is more likely than not to flow from another fact.” Badilla Supplemental Br.

at 7; see Badilla, 383 F.3d at 1140 (“A permissive inference instruction is valid if

there is a rational connection between the fact that the prosecution proved and the

ultimate fact presumed, and the latter is more likely than not to flow from the


      1
       As noted in the prior opinion,
      [t]he totality of the evidence in this case supports an inference that
      Badilla knew of the marijuana’s presence in the vehicle. Badilla
      owned the truck. The marijuana had an estimated street value of at
      least $119,515, making it unlikely that the owner of the marijuana
      would allow it to be stored and transported in a vehicle which is
      owned and driven by someone who had no knowledge of its presence.
      The five-inch lift of the truck’s cab and bed was visible from outside
      the vehicle, making the hidden compartment readily discoverable by
      Badilla. The large volume and weight of the marijuana further
      supports the inference that Badilla knew of its presence within his
      vehicle.
United States v. Badilla, 383 F.3d 1137, 1140 (10th Cir. 2004).

                                         -5-
former.”). According to Badilla, judges have no right to make such a

determination under Booker. Badilla Supplemental Br. at 7 (“The judicial

determination of ‘more likely than not’ is an invasion of the jury function and a

violation of the Sixth Amendment.”).

      The problem with Badilla’s argument is that it is squarely foreclosed by the

Court’s decision in Ulster County. Ulster County makes clear that permissive

inference instructions like the one at issue in this case do not invade the jury’s

factfinding function as long as there is a “rational way the trier could make the

connection permitted by the inference.” 442 U.S. at 157; see also United States v.

Cota-Meza, 367 F.3d 1218, 1221-22 (discussing Ulster County). Such a

connection is rational in this case in light of the facts developed at trial. See

supra note 1 (setting out the totality of evidence in this case supporting an

inference that Badilla knew of the marijuana’s presence in the vehicle); Ulster

County, 442 U.S. at 157 (holding that a party challenging a permissive inference

instruction is required to demonstrate its invalidity as applied to him). Contrary

to Badilla’s assertions, there is simply nothing in Booker that calls into question

the Court’s decision in Ulster County. 2


      2
       Even assuming that there is some tension between Booker and Ulster
County, a dubious assumption at best, this court is obligated to apply Ulster
County to resolve Badilla’s claims regarding the permissive inference instruction.
As the Supreme Court has made clear, “if a precedent of [the] Court has direct
                                                                      (continued...)

                                           -6-
       Badilla also argues that he is entitled to resentencing in light of Booker.

Because Badilla did not raise this claim before the district court, we review only

for plain error. United States v. Gonzalez-Huerta, 403 U.S. 727, 732 (10th Cir.

2005) (en banc). “Under that test, before an appellate court can correct an error

not raised at trial, there must be (1) error, (2) that is plain, and (3) affects

substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002) (quotations

and alteration omitted). “If all three conditions are met, an appellate court may

then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 631-32 (quotation and alteration omitted).

       There are two distinct types of sentencing errors that a court could make in

light of Booker. Gonzalez-Huerta, 403 F.3d at 731. 3 A sentencing court could

       2
        (...continued)
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls,
leaving to [the] Court the prerogative of overruling its own decisions.” Agostini
v. Felton, 521 U.S. 203, 237 (1997) (quotation and alteration omitted).
       3
        The dichotomous nature of Booker errors flows from the “unique” nature
of the remedy adopted by the Booker court. United States v. Gonzalez-Huerta,
403 F.3d 727, 731 (10th Cir. 2005) (en banc). As this court has noted,
       In Booker, the Court “reaffirm[ed its] holding in Apprendi: Any 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.” Booker,
       125 S. Ct. at 756. As a result, the Court held that mandatory
                                                                       (continued...)

                                            -7-
violate the Sixth Amendment “by relying upon judge-found facts, other than those

of prior convictions, to enhance a defendant’s sentence mandatorily.” Id.

Alternatively, “a sentencing court could err by applying the Guidelines in a

mandatory fashion, as opposed to a discretionary fashion, even though the

resulting sentence was calculated solely upon facts that were admitted by the

defendant, found by the jury, or based upon the fact of a prior conviction.” Id. at

731-32.

      With this as background, Badilla argues that the district court committed

Booker error when it increased his base offense level by two levels for obstruction

of justice. The government concedes that the district court committed

constitutional Booker error when it increased Badilla’s offense level based on a

judicial finding that Badilla lied to the jury at trial when he testified that he was




      (...continued)
      3

     application of the Guidelines violates the Sixth Amendment when
     judge-found facts, other than those of prior convictions, are
     employed to enhance a sentence. The Court constructed a unique
     remedy to this constitutional infirmity. It severed two provisions of
     the Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et
     seq. Namely, it excised 18 U.S.C. § 3553(b)(1), which made the
     imposition of a Guidelines sentence mandatory in the vast majority of
     cases, and those portions of 18 U.S.C. § 3742(e) that established
     standards of review on appeal. Booker, 125 S. Ct. at 764.
     Henceforth, courts are still required to consider the Guidelines in
     determining sentences, but they are not required to impose a sentence
     within the Guidelines range. Id.
Gonzalez-Huerta, 403 F.3d at 731.

                                          -8-
unaware of the presence of the marijuana in the vehicle. 4 The propriety of the

government’s concession that the district court committed constitutional Booker

error is far from clear. 5 As noted in this court’s prior opinion, Badilla specifically

testified at trial that he was unaware of the presence of the marijuana until he was

informed by the Border Patrol agents that the dog had alerted. Badilla, 383 F.3d

at 1139, 1141-42. In finding Badilla guilty of possession with intent to distribute,

the jury must have necessarily found that Badilla’s testimony on this key question

was false. Thus, it could certainly be argued that the jury implicitly found beyond

      4
        Although not raised by Badilla, the government also suggests the district
court committed constitutional Booker error when it set Badilla’s offense level by
referencing the amount of marijuana Badilla possessed. See generally United
States Sentencing Guideline (“U.S.S.G.”) § 2D1.1 (setting out method of
calculating offense levels in offenses involving drugs). The government’s
suggestion is unfounded. The district court did find, as noted by the government,
that Badilla’s offense of conviction involved 217 kilograms of marijuana. This
judge-found-fact, however, had no ultimate impact on Badilla’s offense level.
Badilla was indicted and tried for possession with intent to distribute 100
kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B). Applying the beyond-a-reasonable-doubt standard, the jury found him
guilty of this charge. The Guidelines prescribe a base offense level of twenty-six
if the defendant possessed “[a]t least 100 KG but less than 400 KG of
Marihuana.” U.S.S.G. § 2D1.1(a)(3), (c)(7). Accordingly, using only the amount
of marijuana found by the jury, Badilla’s offense level was correctly set at
twenty-six. Because all of the facts necessary to support an offense level of
twenty-six for the crime of conviction were submitted to the jury and proven
beyond a reasonable doubt, there is no constitutional Booker error with regard to
the drug-quantity component of Badilla’s offense level. United States v. Booker,
125 S. Ct. 738, 756 (2005).
      5
       Because the district court treated the Guidelines as mandatory in
sentencing Badilla, there is no doubt that the district court committed non-
constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 731-32.

                                          -9-
a reasonable doubt the facts necessary to support the application of a U.S.S.G. §

3C1.1 adjustment for obstruction of justice. Nevertheless, it is unnecessary to

resolve the propriety of the government’s concession because, even utilizing the

more relaxed plain-error standard applicable to constitutional errors, Badilla has

failed to demonstrate his entitlement to relief. See United States v. Trujillo-

Terrazas, 405 F.3d 814, 818 (10th Cir. 2005) (noting that the plain-error “analysis

is relaxed when applied to potential constitutional error”).

      For those reasons set out above, we proceed under the assumption that the

district court committed a constitutional Booker error when it increased Badilla’s

offense level by two levels for obstruction of justice. This error amounts to plain

error sufficient to satisfy the first two prongs of the plain-error analysis. United

States v. Dazey, 403 F.3d 1147, 1174-75 (10th Cir. 2005). Moving to the third

prong of the plain-error analysis, Badilla has the burden of establishing that the

district court’s plain error affected his substantial rights. Id. at 1175 (“The

burden to establish prejudice to substantial rights is on the party that failed to

raise the issue below.”). “For an error to have affected substantial rights, the

error must have been prejudicial: It must have affected the outcome of the district

court proceedings.” Id. (quotation omitted).

            In a case of constitutional Booker error, there are at least two
      ways a defendant can make this showing. First, if the defendant
      shows a reasonable probability that a jury applying a reasonable
      doubt standard would not have found the same material facts that a

                                          -10-
      judge found by a preponderance of the evidence, then the defendant
      successfully demonstrates that the error below affected his
      substantial rights. This inquiry requires the appellate court to review
      the evidence submitted at the sentencing hearing and the factual basis
      for any objection the defendant may have made to the facts on which
      the sentence was predicated. Second, a defendant may show that the
      district court’s error affected his substantial rights by demonstrating
      a reasonable probability that, under the specific facts of his case as
      analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the
      district court judge would reasonably impose a sentence outside the
      Guidelines range. For example, if during sentencing the district
      court expressed its view that the defendant’s conduct, based on the
      record, did not warrant the minimum Guidelines sentence, this might
      well be sufficient to conclude that the defendant had shown that the
      Booker error affected the defendant’s substantial rights.

Dazey, 403 F.3d at 1175 (footnotes omitted).

      Badilla does not satisfy either of the two alternative methods of

demonstrating an effect on substantial rights identified in Dazey. As to the

second alternative identified in Dazey, Badilla does not point to any evidence in

the record that the judge believed the Guidelines range was excessive in light of

the record before the court. In fact, as candidly admitted by Badilla, “[t]he record

in this case does not provide an answer to whether the judge would have imposed

a different sentence had the [G]uidelines been viewed as advisory.” Badilla

Supplemental Br. at 9. Without any evidence in the record indicating that the

district court would likely impose a sentence outside of the Guidelines range,

Badilla falls back on a request that this court “remand the matter back to the trial

judge for determination of whether his sentence would have been different under


                                         -11-
non-mandatory [G]uidelines.” Id. This court has specifically held, however, that

such an approach is “inconsistent with plain error doctrine” because “plain error

must be assessed based upon the record on appeal.” Gonzalez-Huerta, 403 F.3d

at 733 n.4.

        Badilla does not even argue that he can establish that his substantial rights

were affected under the first alternative identified in Dazey. In any event, a

review of the record on appeal makes clear that the jury would most certainly

have found beyond a reasonable doubt the predicate facts necessary to support the

district court’s obstruction of justice enhancement. As noted above, despite

Badilla’s trial testimony that he was unaware of the presence of marijuana in the

vehicle, the jury found Badilla guilty of possession of more than 100 kilograms of

marijuana with intent to distribute. Implicit in the jury’s guilty verdict is a

conclusion that Badilla lied on the witness stand about the central issue in the

case.

        Because there is no doubt that the jury would have found beyond a

reasonable doubt the factual predicates necessary to support the district court’s

obstruction of justice enhancement and because there is no indication in the

record on appeal that the district court would impose a sentence outside the

Guidelines range, Badilla has not demonstrated that the application of that

enhancement on the basis of judge-found facts affected this substantial rights. As


                                          -12-
Badilla has failed to establish that his substantial rights were affected by the

district court’s application of the obstruction of justice enhancement, there is no

need to proceed on to the fourth prong of the plain error analysis.

      For those reasons set out above, this court reinstates all portions of our

prior decision, with the exception of footnote two, and again affirms Badilla’s

conviction and sentence.




                                         -13-
