                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            July 15, 2005
                                 TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                 Nos. 04-1453 and 04-1454
          v.                                               (D. of Colo.)
 WILLIAM T. RANEY,                                 (D.C. Nos. 03-CR-573-MK
                                                      and 04-CR-131-MK)
               Defendant-Appellant.


                           ORDER AND JUDGMENT              *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.             **




      William T. Raney pled guilty to two counts of being a felon in possession

of a firearm and one count of commission of an offense while on release. The

district court found Raney had previously been convicted of a controlled

substance offense and enhanced his sentence accordingly.       See United States

Sentencing Guidelines (USSG) § 2K2.1(a)(4)(A).


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
       Raney makes two arguments on appeal. First, that his prior conviction for

interstate travel in aid of racketeering is not a controlled substance offense.

Second, that his sentence violates the Sixth Amendment under the Supreme

Court’s recent decision in   United States v. Booker, 125 S. Ct. 738 (2005). Taking

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Raney’s sentence.

       A. Sentence Enhancement Based on Fact of Prior Conviction

       Raney entered into a plea agreement which states he was “previous[ly]

convicted in 1989 . . . for the charge of interstate travel in aid of racketeering.”

To assist sentencing, the government prepared a pre-sentencing report (PSR),

which contained, as an addendum, a copy of the indictment from his prior

conviction. According to the indictment:

       On or about October 23, 1985 . . . [and] January 1, 1986 . . .
       WILLIAM RANEY, did unlawfully, willingly and knowingly travel
       in interstate commerce . . . with the intent to promote . . . an
       unlawful activity, to wit: the business enterprise of the distribution of
       cocaine, a controlled substance . . . and WILLIAM RANEY did
       thereafter perform and attempt to perform acts to promote . . . said
       unlawful activity.

       The sentencing judge first noted interstate travel in aid of racketeering is

not a controlled substance offense as defined by USSG § 4B1.2(b) because it is

not “the manufacture, import, export, distribution, or dispensing of a controlled

substance. . . or the possession of a controlled substance . . . with intent to

manufacture, import, export, distribute, or dispense.” However, as the judge


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observed, Application Note 1 to USSG § 4B1.2 expands this definition to

“include the offenses of aiding and abetting . . . and attempting to commit such

offenses.” The district court thus concluded Raney’s prior conviction for

interstate travel in aid of the distribution of cocaine was a controlled substance

offense. The judge went on to state her findings and decision adhered to and

were compatible with the Supreme Court’s holding in      Taylor v. United States , 495

U.S. 575 (1990).   1
                       As a result, the court enhanced Raney’s sentence.

      We agree with the district court’s analysis and incorporate it herein. We

also add that the Supreme Court’s recent decision in    Shepard v. United States ,

125 S. Ct. 1254 (2005), further forecloses Raney’s argument that his prior

conviction was not a controlled substance offense. The Court in      Shepard applied

Taylor’s categorical approach to prior convictions resulting from a guilty plea.

Thus, when determining the fact of a prior conviction stemming from either a

jury’s verdict or a guilty plea, a sentencing court must limit its examination to

“the terms of the charging document, the terms of a plea agreement or transcript

of colloquy between judge and defendant . . . , or to some comparable judicial

record of this information.” Id. at 1263. The indictment, which is a charging



      1
          Taylor held that a court must use a categorical approach when
determining the fact of a prior conviction, such that only the language of the
statute, the charging documents, and any sworn statements made by the defendant
can be examined. See 495 U.S. at 600.

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document from Raney’s prior conviction shows it was a controlled substance

offense. Therefore, the district court properly enhanced Raney’s sentence.    2



       B. Booker and Blakely

       During sentencing, Raney objected to various enhancements to his

sentence. He based these objections on     Blakely v. Washington , 124 S. Ct. 2531

(2004), and its finding that a sentence enhancement based upon judge found facts

can violate a defendant’s Sixth Amendment rights.

       Raney’s reply brief makes the same argument based on        Blakely and the

Supreme Court’s more recent decision in      United States v. Booker, 125 S. Ct. 738

(2005). He also expands his argument by claiming the district court further

violated Booker by applying the Guidelines mandatorily. Ordinarily, a defendant

who raised a Booker argument during sentencing is entitled to harmless error

review on appeal. See United States v. Labastida-Segura, 396 F.3d 1140 (10th

Cir. 2005). However, Raney failed to argue his sentence violated Blakely or

Booker in his opening brief. “Failure to raise an issue in the opening appellate

brief waives that issue.”   United States v. Black, 369 F.3d 1171, 1176 (10th Cir.

2004). Raney’s failure to raise his   Blakely/Booker argument in his opening brief


       2
         The inclusion of the indictment from Raney’s prior conviction
differentiates this case from our recent decision in United States v. Perez-Vargas,
– F.3d – , No. 04-1321. There, we remanded for re-sentencing because the record
contained no evidence regarding the facts of the prior conviction that was
reviewable under Taylor and Shepard.

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is particularly damaging because his failure denied the government the

opportunity to argue the error was harmless.      See Fed. R. Crim. P. 52(a);   United

States v. Glover , – F.3d – , No. 04-5150, 2005 WL 1541083, *4 (10th Cir. July 1,

2005) (“In non-constitutional harmless error cases, the government bears the

burden of demonstrating, by a preponderance of the evidence, that the substantial

rights of the defendant were not affected.”). Therefore, we find Raney waived his

Booker/Blakely argument.

        But if we found Raney had not waived the argument, we would find any

error committed by the district court was harmless. First of all, the court

enhanced Raney’s sentence based on three separate findings: 1) he possessed

three firearms; 2) he obstructed justice; and 3) he was previously convicted of a

controlled substance offense. Raney admitted the facts of the first two findings in

his plea agreement. Thus, the court did not err in enhancing Raney’s sentence

based on those findings.   See Booker , 125 S. Ct. at 756. As set forth in greater

detail above, the indictment from Raney’s prior conviction clearly shows it was a

controlled substance offense. Thus, the court did not err when it enhanced

Raney’s sentence based on his prior conviction.      See id; Shepard , 125 S. Ct. at

1262.

        In addition, the court’s mandatory application of the Guidelines was

harmless. First, unlike the defendant in   Labastida-Segura , 396 F.3d at 1143,


                                           -5-
Raney was not sentenced at the bottom of the applicable Guidelines range. In

fact, he was sentenced to 90 months imprisonment, seven months short of the

maximum available under the determined Guidelines range of 78 to 97 months.

See United States v. Riccardi , 405 F.3d 852, 876 (10th Cir. 2005) (finding error

was harmless when defendant not sentenced at bottom of range). Second, the

court refused to grant Raney’s request to depart downwardly, acknowledging that

such departure “is a discretionary decision made by the Court.” [App. Vol. II p.

27] Thus, when given the opportunity, the court refused to exercise its discretion.

See id. (noting that since the court refused to exercise its discretion during

sentencing, it was unlikely the court would exercise discretion to give a lower

sentence now that the Guidelines were advisory). Third, the court noted that

Raney’s current crimes were not an anomaly, but rather were part of a long

history of criminal conduct. Fourth, the court specifically tailored the sentence to

meet the considerations of the various 18 U.S.C. § 3553(a) factors.      See Booker

125 S. Ct. at 743 (finding courts, post   -Booker , are required to consider the factors

set forth in 18 U.S.C. § 3553(a)). Finally, it is worth noting that the government

never conceded any errors committed by the district court were not harmless.        See,

e.g., United States v. Jardine   , 406 F.3d 1261 (10th Cir. 2005) (remanding for re-

sentencing where government conceded the sentence imposed was not harmless




                                            -6-
Booker error). This is due in no small part to Raney’s failure to raise the issue in

his opening brief.

      In conclusion, we find the district court did not err when it enhanced

Raney’s sentence, and that any error it committed in applying the Guidelines

mandatorily did not affect Raney’s substantial rights and was harmless.    See

Riccardi , 405 F.3d at 876.

      AFFIRMED.

                                                 Entered for the Court



                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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