                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 8, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                            __________________________                     Clerk of Court

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

          Plaintiff - Appellee,

 v.                                                        No. 04-6182
                                                        (W .D. Oklahoma)
 V IRGIL EA RL N ELSO N ,                             (D.Ct. No. 03-CR-6-M )

          Defendant - Appellant.
                         ____________________________

                              OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, 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 M ay 8, 2003, Virgil Earl Nelson, along with a number of other

individuals associated with the Outlaws M otorcycle Club, was indicted for

various drug and firearm offenses. On February 9, 2004, Nelson pled guilty to

      *
          This order and judgment is not binding precedent except under the doctrines of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.
knowingly and intentionally attempting to manufacture methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1) and 846. In his plea agreement, Nelson

waived his constitutional right to a jury trial.

      The presentence report (PSR ) recommended an initial base offense level of

38, based on 447,670 kilograms of marijuana equivalent. It also recommended a

two-point enhancement for possessing a dangerous weapon, a four-point

enhancement for Nelson’s role as an organizer or leader, and a two-point

reduction for acceptance of responsibility, resulting in a total offense level of 42.

Because Nelson qualified as a career offender under USSG §4B1.1, his criminal

history category was V I. W ith an offense level of 42 and a criminal history

category of V I, the applicable guideline range w as 360 months to life. However,

the PSR noted that the guideline range exceeded the statutory maximum of twenty

years (240 months) under 21 U.S.C. § 841(b)(1)(C).

      On M ay 19, 2004, a sentencing hearing was conducted. Both in his

objections to the PSR and at the sentencing hearing, Nelson contested the PSR’s

drug quantity, as well as the enhancements for possessing a firearm and his role

in the offense. Although he did not admit to his criminal history, he did not

object to the application of the career criminal provisions under USSG §4B1.1. 1



      1
         In his Petition to Enter Plea of Guilty, Nelson acknowledged the statutory
maximum for his offense was twenty years imprisonment. He did not object to the
application of the career criminal provisions in USSG §4B1.1 in his objections to the
PSR. At his sentencing hearing, Nelson acknowledged the applicability of the twenty

                                           -2-
The district court overruled the objections and found by a preponderance of the

evidence that Nelson was responsible for 447,670 kilograms of marijuana

equivalent, exercised a leadership role, and possessed a firearm in connection

with his criminal activities. The district court sentenced Nelson to 240 months

imprisonment, the statutory maximum. Nelson appeals. W e exercise jurisdiction

under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and AFFIRM .

I. Discussion

      On appeal Nelson argues the enhancements to his sentence based on drug

quantity, firearm possession, his leadership role, and his criminal history violate

his Sixth Amendment rights under United States v. Booker, 543 U.S. 220 (2005).

He also argues that application of Justice Breyer’s remedial opinion in Booker

violates constitutional prohibitions against ex post facto laws.

      A. Booker

      Although Nelson raised sentencing objections in the district court based on

the sufficiency of the evidence, he did not object based on the Sixth Amendment.

Thus, we review the district court’s sentencing decision for plain error. United

States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir.) (en banc) (objection to

enhancement based on sufficiency of the evidence insufficient to preserve Booker

error), cert. denied, 126 S.Ct. 303 (2005); United States v. Dazey, 403 F.3d 1147,




year maximum under USSG §4B1.1.

                                         -3-
1174 (10th Cir. 2005); United States v. Gonzalez-Huerta, 403 F.3d 727, 729 (10th

Cir.) (en banc), cert. denied, 126 S.Ct. 495 (2005). 2 To establish plain error,

Nelson must demonstrate the district court (1) comm itted error, (2) the error was

plain, and (3) the plain error affected his substantial rights. Gonzalez-Huerta,

403 F.3d at 732. “If all these conditions are met, a court reviewing the error may

exercise discretion to correct it if the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Dazey, 403 F.3d at 1174. Nelson

bears the burden of demonstrating that the alleged error in sentencing affected his

substantial rights. Gonzalez-Huerta, 403 F.3d at 736.

              1. Prior Convictions

       The district court’s use of Nelson’s prior convictions in calculating his

sentence, in particular his criminal history category, was not error. Booker

specifically exempted prior convictions from the requirement that any fact that

increases a sentence beyond the statutory maximum must be proven to a jury

beyond a reasonable doubt. Booker, 543 U.S. at 244. “Furthermore, whether the

present offense and prior offenses constitute felonies that are crimes of violence

or controlled substance offenses [for purposes of USSG §4B1.1] are questions of



       2
         Although he argues the harmless error standard, Nelson concedes the
applicability of the plain error standard under Gonzalez-Huerta and Dazey. He merely
“objects to the reasoning of those cases and asks that they be reconsidered.” (Appellant’s
Br. at 22.) “[B]arring en banc reconsideration, a superseding contrary Supreme Court
decision, or authorization of all currently active judges on the court,” we cannot overturn
these prior decisions. United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000).

                                            -4-
law unaffected by the Supreme Court's holding in Booker.” United States v.

Small, 423 F.3d 1164, 1188 (10th Cir. 2005), cert. denied, 126 S.Ct. 1180 & 126

S.Ct. 1377 (2006).

      Despite this precedent and Booker’s maintenance of the prior conviction

exception, Nelson argues that after Shepard v. United States, 544 U.S. 13 (2005),

prior convictions must be charged and proven beyond a reasonable doubt or

admitted to by the defendant. This argument is foreclosed by United States v.

M oore, 401 F.3d 1220 (10th Cir. 2005). In M oore, we held that neither Booker

nor Shephard disturbed our holding in United States v. Dorris, 236 F.3d 582 (10th

Cir. 2000), where we concluded that even after Apprendi v. New Jersey, 3 a

defendant’s prior convictions need not be charged in an indictment and proven to

a jury beyond a reasonable doubt. M oore, 401 F.3d at 1223-24; see also United

States v. Brothers, 438 F.3d 1068, 1073-74 (10th Cir.), cert. denied, 126 S.Ct.

2946 (2006); United States v. William s, 403 F.3d 1188, 1198 (10th Cir.), cert.

denied, 126 S.Ct. 178 (2005).

                      2. Other enhancements

      Applying the guidelines mandatorily, the district court enhanced Nelson’s

sentence based on its findings that Nelson’s offense involved 447,670 kilograms

of marijuana equivalent, he possessed a dangerous weapon and that he exercised a




      3
          530 U.S. 466, 490 (2000).

                                        -5-
leadership role. Ordinarily, the use of judge-found facts to mandatorily increase a

defendant’s sentence would constitute constitutional Booker error, for which w e

relax the requirements of the plain error analysis. Dazey, 403 F.3d at 1174.

However, where, as here, 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). In

such cases a defendant may still challenge his sentence on appeal based on

Booker, but is limited to raising non-constitutional Booker error. Consequently,

although the first two prongs of the plain error test are satisfied, our analysis is

limited to non-constitutional Booker error. United States v. Clifton, 406 F.3d

1173, 1181 (10th Cir. 2005); Gonzalez-Huerta, 403 F.3d at 732.

       Despite satisfying the first two prongs of the plain error analysis, Nelson

cannot meet the third. To satisfy the third prong, specific facts in the record must

indicate a reasonable probability that in a post-Booker framework, Nelson would

have received a more lenient sentence. United States v. Trujillo-Terrazas, 405

F.3d 814, 819 (10th Cir. 2005). 4 Although the district court’s factual finding



       4
         Because Nelson waived his Sixth Amendment rights and is limited to appealing
non-constitutional Booker error, he may not take advantage of the first alternate method
of establishing that the plain error affected his substantial rights laid out in Dazey. 403
F.3d at 1175 (Allowing defendants in constitutional Booker error cases to demonstrate an
effect on substantial rights by establishing that “a jury applying a reasonable doubt
standard would not have found the same material facts that a judge found by a

                                            -6-
concerning drug quantity drove N elson’s guideline range above the statutory

maximum, Nelson’s sentence was limited to the statutory maximum. For the

sentencing guideline range to fall below the statutory maximum, the district court

would have had to find Nelson responsible for less than 10,000 kilograms of

marijuana equivalent, or less than 2.2338 percent of the “very, very conservative”

estimate of 447,670 kilograms actually found by the district court. 5 (Sent. Tr. at

130, 132.) M oreover, the enhancements for possession of a firearm and role in

the offense were immaterial to the sentence imposed, because even without the

enhancements, Nelson’s guideline range was 360 months to life. Therefore, it is

unlikely Nelson would receive a more lenient sentence on remand. Nelson’s

conclusory statement on appeal that “it is questionable whether a jury would have

found beyond a reasonable doubt that Nelson was involved in this long drug

manufacturing conspiracy” does not change that result, especially given the

limitations of his appellate rights. (Appellant’s Br. at 24.)

       However, even if Nelson has satisfied the third prong of the plain error


preponderance of the evidence. . . .”).
       5
         With a criminal history category of VI, Nelson would have had to have a final
offense level of 33 or less for his sentencing range to fall below the statutory maximum of
twenty years imprisonment. USSG §5A (Sentencing Table). Factoring in his two point
reduction for acceptance of responsibility, Nelson would have had to have a base offense
level of 35 or less for his range to fall below the statutory maximum. Marijuana
equivalent in the amount of at least 10,000 kilograms, but less than 30,000 kilograms
would have resulted in a base offense level of 36. USSG §2D1.1(a)(3). Thus, Nelson
would have had to have been found responsible for less than 10,000 kilograms of
marijuana equivalent for his guideline range to fall below the statutory maximum.

                                            -7-
standard, we conclude he has not met the fourth. See Gonzalez-H uerta, 403 F.3d

at 736 (concluding it was not necessary to determine whether the third prong of

the plain error test w as met because the fourth prong must also be satisfied to

obtain relief and the fourth prong was not met). “Under the fourth prong of plain-

error review , a court may exercise its discretion to notice a forfeited error only if

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

proceedings.” Id. If “non-constitutional [Booker] error” is involved, as in this

case, the standard for satisfying the fourth prong is “demanding” - the defendant

must show that the error is “particularly egregious” and that our failure to notice

it w ould result in a “miscarriage of justice.” Dazey, 403 F.3d at 1178 (quotations

omitted); Gonzalez-Huerta, 403 F.3d at 736-37.

      W e have recognized that in most cases involving “non-constitutional

Booker error” the defendant will be unable to satisfy the fourth prong. Trujillo-

Terrazaz, 405 F.3d at 820-21. W e have developed a number of factors that might

satisfy the fourth prong: (1) a substantial increase in the sentence based on

Booker error; (2) evidence the district court would likely impose a significantly

lighter sentence on remand; (3) a substantial lack of evidence supporting the

entire sentence the guidelines required the court to impose; (4) a demonstration

that the 18 U.S.C. § 3553(a) factors warrant a departure from the suggested

guidelines sentence, and (5) other evidence unique to the defendant that

demonstrates a failure in the sentencing process. United States v. Dowlin, 408

                                           -8-
F.3d 647, 671 (10th Cir. 2005). None of these factors are present in this case.

      B. Ex Post Facto

      Finally, Nelson advances a minimally developed ex post facto argument.

Relying on Rogers v. Tennessee, 532 U.S. 451, 456-57 (2001), and Bouie v. City

of Columbia, 378 U.S. 347, 352, 354 (1964), he summarily argues the retroactive

application of Justice Breyer’s opinion in Booker violates the Ex Post Facto

Clause and ex post facto principles inherent in the Due Process Clause of the

Fifth Amendment. In effect, Nelson seeks the benefit of the Court’s

constitutional holding in Booker without the burden of the remedial opinion.

      Article I of the U.S. Constitution provides that neither Congress nor the

states shall pass an “ex post facto Law.” See U.S. Const. art. I, § 9, cl. 3; art. I, §

10, cl. 1. Although by its terms the Ex Post Facto Clause limits legislatures

instead of the judiciary, “limitations on ex post facto judicial decisionmaking are

inherent in the notion of due process.” Rogers, 532 U .S. at 456. “An Ex Post

Facto violation occurs only when a law retroactively alters the definition of

crimes or increases the punishment for criminal acts.” United States v. Andrews,

447 F.3d 806, 809 (10th Cir. 2006) (internal quotation and citation omitted). W e

easily dispose of Nelson’s argument as every circuit, including this one, has

considered and rejected it. United States v. Rines, 419 F.3d 1104, 1106-07 (10th

Cir. 2005) (“W e decline D efendant's invitation to hold that the Supreme Court

ordered us to violate the Constitution . . . . The only difference between the

                                          -9-
Booker regime under which his sentence is determined and the regime he would

have anticipated at the time of his offense is that the guidelines are not

mandatory.”), cert. denied, 126 S.Ct. 1089 (2006). 6

A FFIRME D.

                                           Entered by the C ourt:

                                           Terrence L. O ’Brien
                                           United States Circuit Judge




       6
         See United States v. Perez-Ruiz, 421 F.3d 11, 15 (1st Cir.), cert. denied, 126 S.Ct.
1092 (2005); United States v. Fairclough, 439 F.3d 76, 79 (2d Cir.), cert. denied, 126
S.Ct. 2915 (2006); United States v. Pennavaria, 445 F.3d 720, 724 (3d Cir. 2006); United
States v. Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006); United States v. Charon, 442
F.3d 881, 893 (5th Cir. 2006); United States v. Richardson, 437 F.3d 550, 555 (6th Cir.
2006); United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006); United States v. Counce,
445 F.3d 1016, 1019 (8th Cir. 2006); United States v. Staten, 450 F.3d 384, 388-89 (9th
Cir. 2006); United States v. Thomas, 446 F.3d 1348, 1354 (11th Cir. 2006); United States
v. Alston-Graves, 435 F.3d 331, 343 (D.C. Cir. 2006).

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