                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             August 16, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 04-3027
          v.                                                (D. Kansas)
 CHRIS REESE,                                      (D.C. No. 03-20053-02-GTV)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      In October 2003, a jury convicted Chris Reese of (1) one count of

conspiracy to distribute more than fifty grams of cocaine base, in violation of 21



      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
U.S.C. § 841(a)(1), (b)(1)(A)(iii), and (2) one count of possession with intent to

distribute more than five grams of cocaine base, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(B)(iii). On appeal, Mr. Reese contends that (1) the district court

erred by not giving a requested jury instruction as to his co-defendant’s guilty

plea; (2) the evidence against him is insufficient to support the guilty verdict; and

(3) a judge-found sentencing enhancement constitutes plain error under United

States v. Booker, 125 S. Ct. 738 (2005). We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm Mr. Reese’s convictions and sentences.



                                  I. BACKGROUND

      In November 2002, as part of narcotics investigations in Kansas City,

Kansas, Officer Eric Jones arrested a woman who bought crack cocaine for an

undercover officer. Officer Jones then went to a residence at 2902 N. 27th Street,

where officers had witnessed the woman purchase the crack. He approached the

residence and saw a man (later identified as Donta Hill) enter through the front

door. Officer Jones ran inside the house and handcuffed Mr. Hill. Officer Jones

found the undercover officer’s “buy money” (used to purchase the drugs) in Mr.

Hill’s pocket and arrested him.

      As Officer Jones was arresting Mr. Hill, Mr. Reese came out of the

northeast bedroom of the residence. He was detained and handcuffed for officer


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safety. Rec. vol. VIII, at 20. Officers found $698 in Mr. Reese’s pockets, which

he attributed to prior employment with a recording company and at comedy

shows. Officers also swept the house looking for other persons. In the northeast

bedroom from which Mr. Reese had exited, Officer Jones saw in plain view a

handgun, a bag of what he suspected was crack cocaine, and a small amount of

marijuana. He also saw three shotguns in a separate bedroom. Id. at 21-22.

      After obtaining a search warrant, officers conducted a search and found

approximately five grams of crack cocaine hidden between a mattress and

bedframe, a loaded handgun, and a bag containing 11.5 grams of crack cocaine in

a black gym bag belonging to Mr. Reese, all in the northeast bedroom; officers

also found 413 grams of crack cocaine in the northeast bedroom closet. Id. at 33,

101-02. In the southwest bedroom, officers discovered three shotguns and nearly

forty-three grams of crack cocaine tucked inside a baseball cap in the closet. Id.

at 53-54, 101-02.

      Mr. Hill, the co-defendant in the case, pleaded guilty to (1) conspiracy to

possess with intent to distribute more than fifty grams of crack cocaine, (2)

possession with intent to distribute more than fifty grams of crack cocaine, and

(3) maintaining a drug house. As part of his plea agreement, Mr. Hill agreed to

testify against Mr. Reese.

      At Mr. Reese’s trial, Mr. Hill testified that he had frequent contact with Mr.


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Reese in the five years preceding the November 2002 arrest. Rec. vol. IV, at 17.

Mr. Hill further testified that Mr. Reese “occasionally” had sold crack cocaine at

the residence and had handled a “house gun” kept at the residence. Id. at 35, 66-

67. According to Mr. Hill, drug activity occurred over a three-week period of

time at the residence, starting in early November 2002, and some customers

returned to the residence up to ten times per day to purchase crack cocaine. Id. at

20-26. Mr. Hill stated at trial that he and Mr. Reese were “front[ed]” small

quantities of crack from two other individuals, “Deloke” and “Richie,” who had

larger amounts of crack cocaine at the residence. Id. at 40-42.

      The government charged Mr. Reese with (1) one count of conspiracy to

distribute more than fifty grams of a controlled substance, in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A)(iii); (2) one count of possession with intent to

distribute more than fifty grams of cocaine base, in violation of 21 U.S.C. §

841(a)(1), (b)(1)(A)(iii); (3) one count of possessing a firearm in furtherance of

drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) one count of

maintaining a drug house, in violation of 21 U.S.C. § 856(a)(1). In November

2003, a jury convicted Mr. Reese of the first count and the lesser-included offense

of the second count (possession with intent to distribute more than five grams of

cocaine base). The jury acquitted him of possessing a firearm in furtherance of

drug trafficking and maintaining a drug house.


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      At sentencing, the district court began with a base offense level of thirty

and found facts supporting a two-level enhancement for possession of a firearm

during the offense. See U.S.S.G. § 2D1.1(b)(1). It then reduced two levels for

Mr. Reese’s minor participation under U.S.S.G. § 3B1.2(b). With a total offense

level of thirty and criminal history category of II, the Guidelines range was 108 to

135 months. The conspiracy count required a mandatory minimum sentence of

120 months. See 21 U.S.C. § 841(b)(1)(A)(iii). The district court sentenced Mr.

Reese to 130 months’ imprisonment on each of the two counts, to run

concurrently.



                                  II. ANALYSIS

      Mr. Reese now appeals his conviction and sentence on three grounds. He

contends that (1) the district court erred in not giving his requested jury

instruction about Mr. Hill’s guilty plea; (2) the evidence is insufficient to support

the guilty verdict; and (3) the district court’s enhancement for possession of a

firearm constituted plain error under Booker.

      A.     Jury instructions regarding Mr. Hill’s guilty plea

      At trial, co-defendant Mr. Hill testified in the government’s case-in-chief

and provided detailed information about Mr. Reese’s drug trafficking activity.

Mr. Reese contends on appeal that the district court erred by not giving his


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requested jury instruction that Mr. Hill’s guilty plea could not be considered as

evidence against Mr. Reese. “We must review the district court’s decision to give

a particular jury instruction for abuse of discretion.” United States v. McPhilomy,

270 F.3d 1302, 1310 (10th Cir. 2001) (quotation marks omitted). However, we

“consider the instructions as a whole de novo to determine whether they

accurately informed the jury of the governing law.” Id.

      The district court gave the following instruction about Mr. Hill’s testimony

and guilty plea:

      You have heard the evidence that one witness, Donta Hill, has received
      promises from the government. This testimony was received in
      evidence and may be considered by you. You may give the testimony
      such weight as you think it deserves. Whether or not such testimony
      may have been influenced by the government’s promises is for you to
      determine. If you determine that the testimony of such a witness was
      affected by those promises, then you should keep in mind that such
      testimony is always to be received with caution and weighed with great
      care. You should never convict a defendant upon the unsupported
      testimony of such a witness unless you believe that testimony beyond
      a reasonable doubt.

Rec. vol. IX, at 23-24.

      Mr. Reese’s counsel objected on grounds that the district court’s instruction

did not adequately explain that Mr. Hill’s guilty plea should not be considered as

evidence against Mr. Reese. The district court declined to place particular details

of Mr. Hill’s plea agreement into the jury instruction, as requested by Mr. Reese’s

counsel, because it was concerned that the instruction incorporated defense


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arguments. Rec. vol. VI, at 8-9. Mr. Reese also maintained that the prosecutor

made improper comments during closing argument by stating, “Donta Hill? Yeah,

he got a deal, and you can consider that. But if you have got a problem with the

deal that Donta Hill got, then you can come up after this trial and you can tell me

about it.” Rec. vol. IX, at 36. The district court instructed the jury to disregard

the remark.

      “A codefendant’s guilty plea may not be used as substantive evidence of a

defendant’s guilt.” United States v. Baez, 703 F.2d 453, 455 (10th Cir. 1983). “If

the codefendant testifies, however, either the government or the defense may

elicit evidence of a guilty plea for the jury to consider in assessing the

codefendant’s credibility as a witness.” Id. Because a co-defendant’s guilty plea

has “potential for prejudice, cautionary instructions limiting the jury’s use of the

guilty plea to permissible purposes are critical.” Id. As a general rule, “[a]

criminal defendant is entitled to an instruction on his theory of defense provided

that theory is supported by some evidence and the law.” United States v. Alcorn,

329 F.3d 759, 767 (10th Cir. 2003) (internal quotation marks omitted). However,

such an instruction is required “only if, without the instruction, the district court’s

instructions were erroneous or inadequate.” Id.

      The government here did not argue at trial that the jury should find Mr.

Reese guilty because of Mr. Hill’s guilty plea. Mr. Hill testified about his plea


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agreement, his obligation to testify, and the cooperation he had provided to the

government, and Mr. Reese’s counsel did not object to this testimony. Rec. vol.

IV, at 3-15. Moreover, the district court effectively instructed the jury that (1)

Mr. Hill received benefit from his testimony, (2) it should consider that fact in

evaluating his testimony, and (3) it should receive and weigh his testimony using

caution and great care. The district court’s instructions, as a whole, accurately

informed the jury of the governing law. Thus, the district court was within its

discretion when it did not give Mr. Reese’s proposed jury instructions about Mr.

Hill’s guilty plea.

      B.     Sufficiency of the evidence

      Mr. Reese contends that the evidence at trial was insufficient to prove that

he conspired to distribute more than fifty grams of cocaine base. We review

claims of sufficiency of the evidence de novo and determine “whether, taking the

evidence–both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom–in the light most favorable to the government, a reasonable

jury could find the defendant guilty beyond a reasonable doubt.” United States v.

Avery, 295 F.3d 1158, 1177 (10th Cir. 2002) (internal quotation marks omitted).

      “Under 21 U.S.C. § 846, the Government must prove beyond a reasonable

doubt: (1) an agreement with another person to violate the law, (2) knowledge of

the essential objectives of the conspiracy, (3) knowing and voluntary


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involvement, and (4) interdependence among the alleged conspirators.” United

States v. Delgado-Uribe, 363 F.3d 1077,1083 (10th Cir. 2004). “The core of a

conspiracy is an agreement to commit an unlawful act.” United States v.

Esparsen, 930 F.2d 1461, 1471 (10th Cir. 1991).

      Mr. Reese primarily contends that the government did not present sufficient

evidence of the second element of conspiracy. He relies on United States v.

Evans, 970 F.2d 663, 670 (10th Cir. 1992), where we stated that a defendant

“must have a general awareness of both the scope and the objective of the

enterprise to be regarded as a coconspirator.” Mr. Reese cites Mr. Hill’s

testimony that the drug house opened in November 2002 and that Mr. Reese had

worked up to selling a gram of crack each day. He also maintains that the small

amount of money in the house does not support the government’s contention of a

large-scale distribution.

      We are not convinced by Mr. Reese’s arguments. Mr. Hill testified that,

while activity may have occurred over a three-week period of time, some

customers returned to the residence up to ten times per day to purchase crack

cocaine. Rec. vol. IV, at 20-26, 35-36. According to Mr. Hill, he and Mr. Reese

were “front[ed]” small quantities of crack from “Deloke” and “Richie,” who had

the larger quantities of crack in the residence. Id. at 40-42. Officers recovered in

total some 473 grams of crack cocaine in the residence, and Mr. Reese was


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arrested as he exited the northeast bedroom. In that bedroom, officers found

crack cocaine and a loaded handgun in a gym bag identified as belonging to Mr.

Reese. “Knowledge [of illegal activity] and presence [at the crime scene] coupled

with knowing participation in the illegal drug activities are sufficient to sustain a

drug conspiracy.” United States v. Coyote, 963 F.2d 1328, 1331 (10th Cir. 1992).

Viewing evidence in the light most favorable to the government, we conclude that

a rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.

      C.     Booker challenge to a two-level enhancement

      The jury acquitted Mr. Reese of possessing a firearm in furtherance of drug

trafficking. See 18 U.S.C. § 924(c)(1)(A). At sentencing, the district court relied

on judge-found facts and applied a two-level enhancement for possessing a

firearm during the offense. See U.S.S.G. § 2D1.1(b)(1). The district court

concluded that Mr. Reese had an applicable offense level of thirty. It started with

a base offense level of thirty, added two levels for the presence of a firearm, and

reduced two levels for being a minor participant under U.S.S.G. § 3B1.2(b). With

a criminal history category of II, the Guidelines’ range was 108 to 135 months.

Without the judge-found, two-level enhancement, the Guidelines range would

have been 87 to 108 months. The minimum term of imprisonment, however, for

the conspiracy count was 120 months. See 21 U.S.C. § 841(b)(1)(A)(iii). Thus,


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absent the judge-found enhancement, Mr. Reese’s sentence would have been 120

months’ imprisonment; with the judge-found enhancement, the sentence could

have been up to 135 months. The district court considered a range of 120 to 135

months’ imprisonment and sentenced Mr. Reese to 130 months’ imprisonment on

each count, to run concurrently.

      Mr. Reese now alleges a Sixth Amendment constitutional error because the

jury did not find, and Mr. Reese did not admit to, facts that would support the

two-level enhancement. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731

(10th Cir. 2005). Because Mr. Reese did not object to the enhancement during

sentencing, we review the district court’s decision for plain error. Id. at 730.

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 732 (internal quotation marks and

citation omitted). We conduct our plain error analysis of constitutional claims

“less rigidly” than claims of non-constitutional error. United States v. Dazey, 403

F.3d 1147, 1174 (10th Cir. 2005) (quotation marks omitted).

      In light of Booker, the first two prongs of our plain error analysis are met.

The district court committed a constitutional error when it determined facts

supporting the two-level enhancement, and the error is plain. Id.

      As to the third factor, Mr. Reese must show that the error “affected the


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outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,

734 (1993). This burden is met “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.” Dazey,

403 F.3d at 1175. Here, Mr. Reese has established the necessary prejudice. A

jury applying the beyond-a-reasonable-doubt standard acquitted him of possessing

a firearm in furtherance of drug trafficking. However, the district court, applying

the preponderance-of-the-evidence standard, found that Mr. Reese possessed a

firearm during the offense. See U.S.S.G. § 2D1.1(b)(1). Although the terms of

the statutory offense and the Guideline provision are not identical, they are

sufficiently similar to demonstrate a reasonable probability that a jury would not

have found the material facts necessary to support the two-level enhancement

under Section 2D1.1(b)(1).

         Finally, Mr. Reese must show that he satisfies the fourth prong of plain

error. Gonzalez-Huerta, 403 F.3d at 736. We have previously identified three

“non-exclusive factors” to guide our discretion in correcting constitutional Booker

errors that are plain. United States v. Clifton, 406 F.3d 1173, 1182 (10th Cir.

2005).

         First, if the underlying right is constitutional, we are more likely to
         conclude that a remand would be appropriate. Second, if the defendant
         challenged the factual basis of the judicial findings that affected his
         substantial rights, this weighs in favor of a remand. Third, the

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      magnitude of the difference between the sentence authorized by a jury’s
      verdict or a plea of guilty and the sentence permitted after mandatory
      judicial fact finding affects whether or not we should correct the error.

United States v. Hauk, 412 F.3d 1179, 1197 (10th Cir. 2005) (internal citations

omitted); see also United States v. Dowlin, 408 F.3d 647, 671 (10th Cir. 2005)

(describing five kinds of evidence “support[ing] an exercise of our discretion” to

correct a sentencing error under the fourth prong).

      Here, the first of these “fourth prong” factors suggests that remand would

be appropriate, as the error in Mr. Reese’s sentence is of a constitutional nature.

As to the second factor, Mr. Reese did not object to the presentence report’s

suggested two-point enhancement for possession of a dangerous weapon, and the

district court applied the enhancement at sentencing without discussion. “Where

a defendant acquiesces to the district court’s findings of fact that support an

enhancement with little or no objection, leaving the resulting plain error

uncorrected poses little risk to the fairness or integrity of judicial proceedings.”

Hauk, 412 F.3d at 1197-98; cf. United States v. Bass, 411 F.3d 1198, 1204 n.7

(10th Cir. 2005) (“[W]e are unwilling to conclude that [the defendant’s] failure to

object [to a fact in a presentence report] operated as an admission of fact for

purposes of the rights announced in Booker.”) (internal quotation marks omitted).

      Regarding the third factor, we cannot conclude that any increase in Mr.

Reese’s sentence from judge-found facts requires us to exercise discretion to


                                         -13-
correct the sentencing error. Given the statutory minimum sentence and the

judge-found enhancement, the district court considered a range of 120 to 135

months’ imprisonment. It found that “a Criminal History Category 2 for Mr.

Reese really tends to understate his criminal history . . . sufficiently that I’m not

going to sentence at the bottom of the guideline range.” Rec. vol. XI, doc. 94, at

21. The district court sentenced Mr. Reese to 130 months’ imprisonment on each

count, to run concurrently.

      Accordingly, we cannot conclude that Booker error here affected the

integrity, fairness, or public reputation of judicial proceedings. The district court

sentenced Mr. Reese near the top of the unlawfully determined Guidelines range.

Furthermore, Mr. Reese has not shown that “the district court would likely impose

a significantly lighter sentence on remand” or that “evidence peculiar [to Mr.

Reese] demonstrates a complete breakdown in the sentencing process.” Dowlin,

408 F.3d at 671. See United States v. Lawrence, 405 F.3d 888, 908 (10th Cir.

2005) (noting that, when a district court sentenced a defendant under Booker

constitutional error to two months above the bottom of the Guidelines range,

“[t]he court’s apparent rejection of defense counsel’s arguments that a lower

sentence was appropriate strongly indicates that the court felt that there were no

mitigating factors that would justify a lower sentence in this case”); cf. Hauk, 412

F.3d at 1198 (concluding that a defendant met the fourth prong when “[t]he effect


                                          -14-
of the judge-found facts was to increase the bottom of the applicable sentencing

range by either 30 or 56 months” and the district court sentenced him at the

bottom of the Guidelines range).

      Thus, because Mr. Reese cannot meet the fourth prong of plain error

analysis, he is not entitled to relief or resentencing in light of Booker.



                                III. CONCLUSION

      Accordingly, we AFFIRM Mr. Reese’s convictions and sentences.



                                                 Entered for the Court,


                                                 Robert H. Henry
                                                 Circuit Judge




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