                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                      December 21, 2005
                     UNITED STATES COURT OF APPEALS
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES of AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-1519
 v.
                                                  (D.C. No. 03-CR-530-D)
                                                         (D. Colo.)
 DAVID STEPHENSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, MCKAY and HENRY, Circuit Judges.


      Defendant-Appellant David Stephenson pleaded guilty to transport of child

pornography in violation of 18 U.S.C. § 2252A(a)(1). On appeal, he alleges that

he is entitled to be resentenced in light of United States v. Booker, 543 U.S. 220

(2005), because the district court mandatorily imposed a sentence according to the



      *
        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 ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Federal Sentencing Guidelines. We agree. Mr. Stephenson also argues that on

remand the district court is limited to considering facts, including prior

convictions, alleged in the indictment to calculate the appropriate advisory

Guideline range. We reject both of these arguments as contrary to Supreme Court

and Tenth Circuit case law.

                                I. BACKGROUND

      In 2003, police officers executed a search warrant at Mr. Stephenson’s

home and found on his computer numerous depictions of children engaged in

sexually explicit conduct. A grand jury subsequently indicted Mr. Stephenson on

three counts: the first two accused Mr. Stephenson of transmitting images of child

pornography in interstate commerce and the third count charged him with

possessing child pornography on his own computer, violations of 18 U.S.C. §

2252A(a)(1) & (a)(5)B).

      After the United States Supreme Court’s decision in Blakely v.

Washington, 542 U.S. 296 (2004), Mr. Stephenson pleaded guilty to Count One,

admitting that he sent the referenced child pornography images in interstate

commerce, and the Government agreed to dismiss Counts Two and Three. Mr.

Stephenson also stipulated to a prior conviction for attempted sexual assault on a

child in violation of Colorado state law. He also admitted the following: 1) that

the images serving as the basis for Count One depicted prepubescent minors, 2)


                                         -2-
that he used his computer, 3) to distribute these images, and 4) that other images

found on his computer portrayed children engaging in sadistic or masochistic

conduct. These factors are listed as “specific offense characteristics” in U.S.S.G.

§ 2G2.2.

      A probation officer prepared a Presentence Report (“PSR”), which

recommended a total of 15 points be added to the base offense level of 17 as

enhancements for this conduct and a 3-point downward adjustment for acceptance

of responsibility. Based on a total offense level of 29 and a criminal history

category III, the PSR calculated the Guideline sentencing range to be 108 to 135

months in prison and further recommended a sentence of imprisonment of 108

months, at the bottom of the range.

      Mr. Stephenson raised three objections to the PSR. First, he raised a

Blakely objection and asked the district court to impose a discretionary sentence.

Second he argued that facts increasing a sentence must be alleged in the

indictment. Finally, he objected to the PSR and requested that his sentence be

capped on the ground that the indictment failed to charge that Mr. Stephenson had

been previously convicted of a felony.

      At the sentencing hearing, the district court overruled all of Mr.

Stephenson’s objections. The district judge noted that Mr. Stephenson’s

stipulation to specific offense characteristics undermined his argument that their


                                         -3-
omission from the indictment constrained his sentence. Accepting the PSR

recommendation, the judge sentenced Mr. Stephenson to 108 months’

imprisonment and five years’ supervised release. Mr. Stephenson appeals that

sentence.

                                 II. DISCUSSION

      Mr. Stephenson raises three arguments on appeal. First, he contends that

his sentence was prejudicial error under United States v. Booker, 543 U.S. 220

(2005), because the district court imposed a mandatory sentence under the Federal

Sentencing Guidelines. Second, Mr. Stephenson claims that the district court

erred by sentencing him beyond the statutory maximum available on the facts

charged in his indictment in violation of his Sixth Amendment right to fair notice

and his Fifth Amendment right to indictment and grand jury presentment and that

these uncharged facts may therefore not be considered on resentencing.

Specifically, he argues that he could not be sentenced to a term of imprisonment

longer than seventy-one months because that was the maximum sentence under

the Guidelines supported by the factual allegations in the indictment to which he

pleaded guilty. Finally, he challenges the district court’s denial of his motion to

cap the sentence on the ground that his indictment failed to charge that he was

previously convicted of a felony. We find only the first argument meritorious and

remand this case for resentencing.


                                        -4-
      A. Booker Issue

      Sentencing Mr. Stephenson pre-Booker, the district court committed non-

constitutional Booker error by applying the Guidelines in a mandatory fashion. 1

See United States v. Gonzales-Huerta, 403 F.3d 727, 731 (10th Cir.) (en banc),

cert. denied, 126 S. Ct. 495 (2005). Mr. Stephenson preserved that error by

raising a Blakely objection. See United States v. Labastida-Segura, 396 F.3d

1140, 1142-43 (10th Cir. 2005). We therefore review for harmless error. Id. The

burden of demonstrating harmless error by a preponderance of the evidence is on

the Government in this case. United States v. Austin, 426 F.3d 1266, 1280-81

(10th Cir. 2005).

      “[N]on-constitutional [Booker] error is harmless unless it had a ‘substantial

influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such

an effect.” United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004), cert.

denied, 125 S. Ct. 1424 (2005); see also Labastida-Segura, 396 F.3d at 1143.

Where, as here, a district court sentences the defendant “at the bottom of the



      1
         Mr. Stephenson does not allege nor does the record reflect any
constitutional Booker error because Mr. Stephenson stipulated to all of the
enhancement-facts used by the judge to mandatorily increase his Guidelines
range. See Gonzales-Huerta, 403 F.3d 731-32.

                                        -5-
guidelines range” and says nothing on the record indicating that it would have

imposed the same or higher sentence under a non-mandatory scheme, “to say that

the district court would have imposed the same sentence given the new legal

landscape (even after consulting the Sentencing Guidelines in an advisory

capacity) places us in the zone of speculation and conjecture.” Labastida-Segura,

396 F.3d at 1142-43. Thus, as the Government concedes, the Booker error in this

case was not harmless and Mr. Stephenson’s sentence must be remanded for

resentencing.

      B. Indictment Issue

      At the sentencing hearing, Mr. Stephenson objected to enhancement of his

sentence based on facts not alleged in the indictment. The indictment alleged that

Mr. Stephenson 1) used his computer 2) to distribute 3) pornographic images of

prepubescent children. Each of these sentencing facts enhanced the base offense

level of 17 by two points, pursuant to U.S.S.G. § 2G2.2(b)(1), (b)(2)(E), & (b)(5)

for a total offense level of 23. With a criminal history category III, the applicable

Guideline range would be fifty-seven to seventy-one months. Mr. Stephenson

therefore claims that at the time he pleaded guilty and was sentenced, the heaviest

punishment he faced on this indictment was seventy-one months. 2 And, he


      2
         The indictment did not allege that Mr. Stephenson 1) “engaged in a
pattern of activity involving the sexual abuse or exploitation of a minor,” for
                                                                       (continued...)

                                        -6-
renews this argument on appeal. Our decision in United States v. Glover, 413

F.3d 1206 (10th Cir. 2005), forecloses any such argument. See id. at 1208-09

(holding that Apprendi and its progeny, including Booker, do not require that

factors supporting sentencing enhancements be alleged in the indictment).

      Furthermore, Mr. Stephenson correctly acknowledges that his argument has

no merit under the current advisory Guideline system mandated by Booker. See

Booker, 125 S. Ct. at 761-62 (recognizing the difficulties of incorporating

sentencing factors into indictments); Glover, 413 F.3d at 1208-09 (holding that

Booker does not require facts supporting sentencing enhancements to be alleged

in the indictment). He argues, however, that Booker’s remedial opinion, which

made the Guidelines advisory, applies only prospectively and that, because he was

indicted, pleaded guilty, and was sentenced pre-Booker, at resentencing the

district court should be limited to facts charged in the indictment.

      We reject Mr. Stephenson’s invitation to violate the Supreme Court’s

explicit instruction to “apply . . . [Booker’s] Sixth Amendment holding and . . .

remedial interpretation of the Sentencing Act—to all cases on direct review.”

Booker, 125 S. Ct. at 769 (emphasis added); see also United States v. Rines, 419


      2
       (...continued)
which the district court enhanced his base offense by five levels pursuant to
U.S.S.G. § 2G2.2(b)(4), or 2) distributed or possessed “sadistic or masochistic”
images, for which the district court enhanced his base offense level by four points
pursuant to U.S.S.G. § 2G2.2(b)(3).

                                         -7-
F.3d 1104, 1106 (10th Cir. 2005), pet. for cert. filed (U.S. Nov. 14, 2005) (No.

05-7719) (rejecting the argument that applying Booker’s “remedial holding in

sentencing for an offense that predated Booker would violate” a defendant’s

constitutional rights); Labastida-Segura, 396 F.3d at 1142 (“We must apply the

remedial holding of Booker to [the defendant’s] direct appeal even though his

sentence does not involve a Sixth Amendment violation.”). 3 Instead, we conclude

that in resentencing Mr. Stephenson in accordance with Booker on remand, the

district court may properly consider sentence enhancement facts in determining

the advisory Guideline range, even if those facts were not alleged in the

indictment. 4

      3
        The First, Second, Fifth, Seventh, Ninth, and Eleventh circuits have held
that the remedial portion of Booker may be properly applied retroactively to cases
on direct appeal. See United States v. Lata, 415 F.3d 107 (1st Cir. 2005); United
States v. Vaughn, --- F.3d ----, 2005 WL 3219706 (2d Cir. 2005); United States v.
Scroggins, 411 F.3d 572 (5th Cir. 2005); United States v. Jamison, 416 F.3d 538
(7th Cir. 2005); United States v. Dupas, 417 F.3d 1064 (9th Cir.), amended by
419 F.3d 916 (9th Cir. 2005); United States v. Duncan, 400 F.3d 1297 (11th Cir.),
cert. denied, 126 S. Ct. 432 (2005). However, we note that most of these were
(judicial) ex post facto cases rather than Fifth Amendment indictment by grand
jury issues.
      4
        In his reply brief, Mr. Stephenson argues that applying Booker’s remedial
holding to Fifth Amendment violations would violate substantive due process and
double jeopardy. We grant the Government’s motion to strike these arguments
because Mr. Stephenson did not raise them in his opening brief. See State Farm
Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994). In any event,
we note that Mr. Stephenson argument is foreclosed by our decision in Rines, in
which we declined the defendant’s “invitation to hold that the Supreme Court
ordered us to violate the Constitution” and instead concluded that Booker’s
                                                                     (continued...)

                                        -8-
      C. Prior Conviction Issue

      For preservation purposes only, Mr. Stephenson reasserts on appeal that the

district court erroneously denied his motion to cap his sentence on the ground that

his indictment failed to charge that he was previously convicted of a felony. We

conclude, and Mr. Stephenson concedes, however, that this third objection is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See

United States v. Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000) (stating

that we are “bound by [Almendarez-Torres] to hold that the fact of defendant's

prior felony conviction is not an element of the offense with which he was

charged by indictment, but is, instead, a sentencing factor”); see also United

States v. Dorris, 236 F.3d 582, 587 (10th Cir. 2000) (rejecting defendant's efforts

to challenge the continuing validity of Almendarez-Torres).

                               III. CONCLUSION

      Because the district court committed non-constitutional Booker error that

affected Mr. Stephenson’s substantial rights, we REMAND this case with

instructions to resentence him in accordance with Booker, which does not require

that facts supporting sentencing factors be included in the indictment.




      4
        (...continued)
remedial decision could apply retroactively to cases on direct appeal without
violating the defendant’s Fifth Amendment rights. 419 F.3d at 1106.

                                        -9-
ENTERED FOR THE COURT



David M. Ebel
Circuit Judge




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