                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           June 21, 2005

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 04-3235
 v.                                            (D.C. No. 03-CR-20129-03-CM)
                                                          (Kansas)
 OLIVER VANDEVENDER,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Oliver Vandevender was found guilty by a jury of conspiracy to transport

stolen firearms in violation of 18 U.S.C. § 371; interstate transportation of stolen

firearms in violation of 18 U.S.C. § 922(j); receipt of stolen firearms transported

in interstate commerce in violation of 18 U.S.C. § 922(j); and possession of

      *
       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judgment is not binding precedent, except under the doctrines of law of the case,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.
firearms by a felon in violation of 18 U.S.C. § 922(g)(1). The presentence report

(PSR) calculated Mr. Vandevender’s base offense level at twenty, see U.S.S.G. §

2K2.1(a)(4), and recommended a two-level enhancement based on a finding that

the firearms involved in the offenses were stolen, see U.S.S.G. § 2K2.1(b)(4), and

a six-level enhancement based on a finding that the offenses involved more than

twenty-five firearms, see U.S.S.G. § 2K2.1(b)(1)(C). These recommendations

resulted in an applicable guidelines range of 110 to 137 months imprisonment.

The district court adopted the PSR’s recommendations and sentenced Mr.

Vandevender at the bottom of the guidelines range to 110 months imprisonment.

Mr. Vandevender 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 when the court found that at least twenty-

five guns were involved in his offenses. See United States v. Booker, 125 S. Ct.

738, 756 (2005); Blakely v. Washington, 124 S. Ct. 2531, 2536 (2004). We

affirm.

      In Blakely, the Supreme Court applied the rule it expressed in Apprendi v.

New Jersey, 530 U.S. 466 (2000), to Washington state’s determinate sentencing

regime. 124 S. Ct. at 2536. Recently, the Court extended Apprendi and Blakely to

the Federal Sentencing Guidelines, holding that the Sixth Amendment requires

that “[a]ny fact (other than a prior conviction) which is necessary to support a


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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. To remedy the

guidelines’ Sixth Amendment problem, the Court severed and excised 18 U.S.C. §

3553(b)(1), which 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. Vandevender’s

sentence must be evaluated in light of the Court’s holding in Booker.

      Because Mr. Vandevender 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

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

establish plain error, Mr. Vandevender 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); see United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (en banc). If Mr. Vandevender 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.


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461, 469-70 (1997) (quoting United States v. Olano, 507 U.S. 725, 736 (1993));

Gonzalez-Huerta, 403 F.3d at 732.

      Mr. Vandevender cannot satisfy the first prong of the plain error analysis.

He contends that he was erroneously sentenced in violation of the Sixth

Amendment because the jury did not find beyond a reasonable doubt that more

than twenty-five firearms were involved in his offenses. We disagree. Each

count in Mr. Vandevender’s indictment listed the names, makes, and serial

numbers of the twenty-seven separate firearms the government alleged were

involved in Mr. Vandevender’s underlying offenses. While it is true as Mr.

Vandevender asserts, that the jury legally could have found that Mr. Vandevender

violated the statutes, 18 U.S.C. §§ 922(i), (j) and (g)(1), with only one firearm,

the jury actually returned a verdict finding him guilty beyond a reasonable doubt

on four counts as charged in the indictment. The jury instructions specifically

stated that in order for Mr. Vandevender to be guilty of violations of 18 U.S.C. §§

922(i) and (g)(1), the jury had to find that those crimes involved the “firearms

described” in the indictment. 1 Aple. Br. Attach. A. Thus, the jury necessarily


      1
       Jury instruction number 27 specifically stated that in order for Mr.
Vandevender to be guilty of violating Section 922(i), the jury had to find that he
“knowingly transported and shipped the firearms described in Count 2 of the
Indictment from Missouri to Kansas,” while jury instruction number 31 stated that
in order for Mr. Vandevener to be guilty of violating Section 922(g)(1), the jury
had to find that he “knowingly possessed firearms described in the Indictment.”
Aple. Br. Attach. A.

                                          -4-
found beyond a reasonable doubt that Mr. Vandevender’s offenses involved the

twenty-seven firearms pled in the indictment. Consequently, we conclude there

was no Sixth Amendment error, plain or otherwise.

       Even assuming Mr. Vandevener suffered constitutional error, we would

still deny his request for resentencing because 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.

In Johnson and Cotton, the fourth prong of plain error review was interpreted to

prohibit recognition of plain error when evidence of a defendant’s guilt on a fact

not found by the jury was “overwhelming” and “essentially uncontroverted.” See

Johnson, 520 U.S. at 470 (finding that error under the Fifth and Sixth

Amendments did not satisfy the fourth prong); see also Cotton, 535 U.S. at

633-34 (same under Fifth Amendment). Therefore, if overwhelming and

essentially uncontroverted evidence exists to support the fact that Mr.

Vandevender’s offenses involved more than twenty-five firearms, the Sixth

Amendment violation cannot satisfy the fourth prong of the analysis. After a

comprehensive review of the record, we are confident the government introduced

overwhelming and essentially uncontroverted evidence proving Mr.

Vandevender’s offenses involved twenty-seven firearms as alleged in the

indictment. “In light of this evidence, the proceedings resulted in a ‘fair and


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reliable determination’ of [Mr. Vandervender’s] guilt and, even assuming plain

error, a reversal would be unwarranted.” United States v. Fabiano, 169 F.3d

1299, 1305 (10th Cir. 1999). Indeed, the “real threat . . . to the fairness, integrity,

and public reputation of judicial proceedings would” result if we vacated Mr.

Vandervender’s sentence. Cotton, 535 U.S. at 634 (internal quotations omitted).

Therefore, we hold Mr. Vandervender’s Sixth Amendment violation, if any, does

not constitute reversible error.

      For the aforementioned reasons, Mr. Vandervender’s sentence is

AFFIRMED.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




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