                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          May 24, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-1164
 v.                                               (D.C. No. 99-CR-383-N)
                                                        (Colorado)
 GEOFFREY CHRIS CLEMENT,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Geoffrey C. Clement was convicted by a jury of sixteen counts of wire and

interstate fraud in violation of 18 U.S.C. §§ 1341, 1343; thirteen counts of money

laundering in violation of 18 U.S.C. §§ 1956(a)(2)(A), 1957; and aiding and

abetting the same in violation of 18 U.S.C. § 2. The presentence report (PSR)

grouped the wire fraud and money laundering counts together and calculated

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The 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judgment is not binding precedent, except under the doctrines of law of the case,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, or 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.
offense levels for each group. With respect to the fraud convictions, the PSR

calculated Mr. Clement’s base level at six and then recommended (1) a fourteen-

level increase for an amount of loss more than $5,000,000 but less than

$10,000,000; (2) a two-level increase because the offenses involved more than

minimal planning; (3) a four-level increase for affecting a financial institution;

and (4) a two-level increase for being an organizer, leader, manager, or

supervisor, resulting in a total offense level of twenty-eight. With respect to the

money laundering convictions, the PSR calculated Mr. Clement’s base offense

level at twenty-three and then recommended (1) a five-level increase for a value

of funds involved in an international money laundering scheme of more than

$1,000,000 but less than $2,000,000 and (2) a two-level increase for being an

organizer, leader, manager, or supervisor, resulting in a total offense level of

thirty. Applying U.S.S.G. § 3D1.4, the PSR adjusted Mr. Clement’s two offense

levels to a combined total offense level of thirty-two, which, when coupled with

his criminal history category of II, yielded an applicable guidelines range of 135

to 168 months imprisonment.

      The district court adopted the recommendations of the PSR and sentenced

Mr. Clement in the middle of the guidelines range to 156 months imprisonment on

the international money laundering convictions. The court sentenced him to the

statutory maximums on his wire fraud and domestic money laundering


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convictions, five and ten years, respectively, to be served concurrently with his

156-month term on his international money laundering convictions. Mr. Clement

appeals, claiming the district court violated his Sixth Amendment right to a jury

trial by imposing a sentence exceeding the maximum authorized solely by the

jury’s verdict. See United States v. Booker, 125 S. Ct. 738, 756 (2005). We

affirm.

      In Booker, the Court held the Sixth Amendment requires that “[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.” Id. To remedy the guidelines’ Sixth Amendment problem, the Court

severed and excised 18 U.S.C. § 3553(b)(1), which had required sentencing courts

to impose a sentence within the applicable guidelines range, subject to departures

in limited cases. Id. at 756-57. As a result, the guidelines are now advisory in all

cases. Id. at 757. In addition, the Court expressly stated that its “interpretation

of the Sentencing Act” must be applied “to all cases on direct review.” Id. at 769.

Thus, Mr. Clement’s sentence must be evaluated in light of the Court’s holding in

Booker.

      Because Mr. Clement did not raise his Sixth Amendment argument in the

district court, we review his claim for plain error. F ED . R. C RIM . P. 52(b); see


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also United States v. Dazey, 403 F.3d 1147, 1173-74 (10th Cir. 2005). To

establish plain error, Mr. Clement must demonstrate that there was (1) error (2)

that was plain and (3) that affected his substantial rights. United States v. Cotton,

535 U.S. 625, 631 (2002); United States v. Gonzalez-Huerta, 403 F.3d 727, 732

(10th Cir. 2005) (en banc). If Mr. Clement satisfies his burden of establishing the

first three prongs of the plain error test, we may exercise our discretion to correct

the error if it “seriously affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Johnson v. United States, 520 U.S. 461, 469-70 (1997)

(quoting United States v. Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta,

403 F.3d at 732.

      There is little doubt Mr. Clement can satisfy the first two prongs of the

plain error analysis. First, the district court committed constitutional error when

it applied mandatory enhancements to Mr. Clement’s sentence as a result of

findings concerning: (1) the intended loss amount, (2) Mr. Clement’s role in the

offenses, (3) the effect of the offenses on a financial institution, and (4) the

amount of planning necessary to commit the offenses. Booker, 125 S. Ct. at 749

(“Since this fact was found by a judge using a preponderance of the evidence

standard, the sentence violated [the defendant’s] Sixth Amendment rights.”).

Second, the error is now “plain” or “obvious.” Johnson, 520 U.S. at 468 (“where

the law at the time of trial [or sentencing] was settled and clearly contrary to the


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law at the time of appeal – it is enough that an error be ‘plain’ at the time of

appellate consideration”).

       In order to demonstrate that an error affected his substantial rights, “a

defendant must show a ‘reasonable probability’ that the defects in his sentencing

altered the result of the proceedings.” Dazey, 403 F.3d at 1175 (citing United

States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004)). We have held that,

in the context of reviewing a constitutional Booker error, a defendant may meet

this burden in two ways:

      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 judge found by a preponderance of the evidence, then the defendant
      successfully demonstrates that the error below affected his substantial
      rights . . . Second, a defendant may show that the district court’s error
      affected his substantial rights by demonstrating a reasonable probability
      that . . . the district court judge would reasonably impose a sentence outside
      the Guidelines range.

Id. It does not appear that, on appeal, Mr. Clement either contends that there was

insufficient evidence for a jury to find beyond a reasonable doubt the sentencing-

enhancing fact that the district court found by a preponderance of the evidence or

that the district court would impose a sentence outside the guidelines range on

remand. 1 We need not decide whether Mr. Clement satisfies the third prong of


      1
        Mr. Clement did not contest the enhancements he received for more than
minimal planning or for affecting a financial institution on any basis. Moreover,
he challenged the amount of intended loss only to the extent that he claimed the
amount was not converted properly from Australian to United States dollars – an

                                          -5-
the plain error analysis, however, “because even assuming [his] substantial rights

were affected, the error did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings.” Cotton, 535 U.S. at 632-33; Johnson, 520

U.S. at 469-70; Gonzalez-Huerta, 403 F.3d at 736 (“We need not determine

whether [the defendant] can satisfy this burden because even if he were to meet

the third prong, he must also satisfy the fourth prong to obtain relief.”).

      Mr. Clement has the burden of persuading the court that the error seriously

affected the fairness, integrity, or public reputation of judicial proceedings.

United States v. Vonn, 535 U.S. 55, 63 (2002). After the district court determined

the applicable guidelines range was 135 to 168 months imprisonment, it opted to

sentence Mr. Clement to a 156-month term, stating:

      If you’re not sick, I would sentence you to the maximum term, because I
      think you’re incorrigible. I think that you’re incorrigible primarily because
      you don’t accept any responsibility. The first step in rehabilitation is
      acceptance of responsibility, and you shift responsibility to everybody
      except yourself. And for that reason, I don’t think that you can be
      rehabilitated. I think that you will always be a fraud and a charlatan . . .
      my prediction is that if you got out, you would do it again, if you were
      physically able to do so. However, since you are ill, the compromise I
      reach is that I’ll impose a sentence somewhere in the middle of the
      guideline range.

Rec., vol. XXXI at 30. In other words, the court calculated Mr. Clement’s



argument that ultimately proved to be incorrect. While Mr. Clement did object to
the aggravating role offense enhancement recommended by the presentence report
on the basis that his co-defendant, Mr. Wilhite, acted alone and “was never
directed by” him, he has abandoned that argument on appeal.

                                          -6-
guidelines range, exercised its discretion, and sentenced Mr. Clement more or less

in the middle of the applicable range. As a result, any argument that the district

court might have sentenced Mr. Clement to a lower term of imprisonment had it

understood it had discretion to do so is simply unpersuasive. Because the court

decided to increase punishment rather than exercise leniency where it had

discretion, there is no basis for us to assume Mr. Clement would receive a lesser

sentence if he were resentenced under a discretionary guidelines regime in which

the district court is required to “consider” the guidelines when it exercises its

discretion. Booker, 125 S. Ct. at 764.

      Under these circumstances, Mr. Clement has failed to meet his burden of

persuading us that the Sixth Amendment error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. We therefore decline to

exercise our discretion to correct the forfeited error. For the foregoing reasons,

we AFFIRM.

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge




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