                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      December 23, 2005
                                TENTH CIRCUIT
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-1165
          v.                                        District of Colorado
 BRIAN VON BEHREN,                               (D.C. No. 04-CR-341-RB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


      This appeal presents the question whether a defendant who committed a

crime and pleaded guilty prior to United States v. Booker, 543 U.S. 220 (2005),

but who was sentenced after Booker, can constitutionally be given a sentence that

is within the statutory maximum but higher than the sentence that he could have


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This 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    This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
constitutionally received under the mandatory guidelines regime. Defendant

Brian Von Behren asks us to find that the district court’s imposition of a sentence,

under an advisory guidelines system, based on specific offense characteristics not

contained in the count to which he pleaded guilty violated the Sixth Amendment

right to fair notice of charges against him, the Fifth Amendment right to

indictment and grand jury presentment, substantive due process, double jeopardy,

and the Supreme Court’s holding in Griffith v. Kentucky, 479 U.S. 314 (1987).

We reject Mr. Von Behren’s constitutional challenges and AFFIRM his

sentence. 1

                                    Background

       On August 10, 2004, the grand jury returned a five-count indictment against

Mr. Von Behren. Count 1 charged him with advertising child pornography in

violation of 18 U.S.C. § 2251(c)(1)(A). Count 2 charged him with receiving and

distributing child pornography through interstate commerce in violation of 18

U.S.C. § 2252A(a)(2)(B). Count 3 charged that Mr. Von Behren possessed child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and Count 4 contained a

forfeiture allegation. Finally, Count 5 included “offense characteristics,” namely



       See generally United States v. Bennett, 147 Fed. Appx. 761 (10th Cir.
       1

Sept. 2, 2005) (unpublished opinion). Although unpublished opinions are not
precedential, Bennett is an identical case to this one and the panel in this case
agrees with the analysis in Bennett. Accordingly, we have liberally adopted
language from the Order and Judgment in Bennett.

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that Mr. Von Behren (a) possessed child pornography material involving a

prepubescent minor, (b) distributed child pornography with the expectation of

receiving a thing of value in return, (c) possessed material portraying sadistic or

masochistic conduct, (d) used a computer for the transmission of child

pornographic material, and (e) possessed 600 or more images of child

pornography.

      On October 26, 2004, Mr. Von Behren entered a plea agreement in which

he pleaded guilty to Count 2 of the indictment and the government agreed to

dismiss Counts 1, 3, and 5. Mr. Von Behren also stipulated to all five specific

offense characteristics contained in Count 5. The plea agreement included a

sentencing computation which provided that Mr. Von Behren’s base offense level

would be increased by a total of 15 levels due to the specific offense

characteristics he admitted. Mr. Von Behren pled guilty on January 11, 2005.

      At his sentencing hearing on May 31, 2005, Mr. Von Behren objected, on

constitutional grounds, to the Presentence Investigation Report’s inclusion of

specific offense characteristics not found within the indictment count to which he

pled guilty. He asserted that his base offense level should be 21, not 32, and that

he should therefore be sentenced to the statutory minimum of 60 months

imprisonment. The district court overruled his objection and found that the “total

advisory offense level was 32” after a reduction for acceptance of responsibility,


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and that the “advisory imprisonment range [was] from 121 to 151 months.” The

district court sentenced Mr. Von Behren to 121 months in prison, finding that

there was no reason to depart from the advisory guidelines range.

                                     Discussion

      On appeal, Mr. Von Behren claims that the district court violated numerous

constitutional provisions by incorporating into his advisory base offense level

specific offense characteristics that he stipulated were true, but that were not

included in the count to which he pleaded guilty. In making this argument, Mr.

Von Behren invokes his Sixth Amendment right to fair notice of the charges

against him and his Fifth Amendment right to indictment and grand jury

presentment. He also relies upon general notions of substantive due process and

the prohibition on double jeopardy. Finally, he argues that applying the remedial

holding of Booker to his offense would violate Griffith v. Kentucky.

      The crux of Mr. Von Behren’s claims under the Fifth and Sixth

Amendments is that it is unconstitutional to impose a sentence based on facts that

were not contained in the indictment. In a similar challenge involving a guilty

plea and stipulated facts, we recently held that the Apprendi line of cases

(including Booker) does not require that factors supporting sentence

enhancements be alleged in the indictment. United States v. Glover, 413 F.3d

1206, 1208-09 (10th Cir. 2005). Like Mr. Von Behren, the defendant in Glover


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pleaded prior to the Court’s decision in Booker. Thus, we must reject Mr. Von

Behren’s claim that the “indictment, or more accurately, the facts alleged in the

indictment’s count of conviction, capped any possible sentence he could receive.”

      Mr. Von Behren concedes that in the current advisory guideline system

mandated by Booker, his argument has no merit. Id. at 11. Instead, he argues that

because he was indicted and pleaded guilty prior to Booker, the district court was

limited to sentencing him based upon facts alleged in the indictment’s count of

conviction, even though he would not be entitled to a jury on those facts, having

waived any such right. Id. at 13-14. An obvious answer to this is that the facts

serving as the basis for the challenged enhancements were contained on the face

of the indictment, in a count that clearly referred to the count of conviction,

thereby obviating any concerns about presentment to a grand jury. Furthermore,

Mr. Von Behren plainly had notice of those facts, having stipulated to them as

part of the plea agreement and acknowledging that they could be considered upon

sentencing.

      In reality, Mr. Von Behren’s argument is an invitation not only to ignore

his admissions, but also to apply the substantive holding of Booker while

disregarding the remedial holding (rendering the Guidelines advisory) that was in

fact applied in his case. This we cannot do. Booker, 125 S. Ct. at 769 (both

substantive and remedial holding must be applied to all cases on direct review);


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United States v. Rines, 419 F.3d 1104, 1106-07 (10th Cir. 2005). Moreover, the

remedy Mr. Von Behren seeks is precisely what the Supreme Court rejected in

Booker. In Booker, the Supreme Court remanded the companion case, Fanfan, for

re-sentencing under the remedial holding, despite the absence of a Sixth

Amendment violation. Booker, 125 S. Ct. at 769. Mr. Von Behren’s argument is

also inconsistent with the broad power of sentencing courts to consider

information beyond the indictment. 18 U.S.C. § 3661; United States v. Watts, 519

U.S. 148, 152-53 (1997) (per curiam).

      Mr. Von Behren also raises a similar argument under the Due Process

Clause and Griffith v. Kentucky. He seeks the benefit of the Court’s

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

arguing that we must apply different retroactivity analyses to Booker’s two

holdings. Mr. Von Behren asserts that under Griffith v. Kentucky, defendants in

pending cases should be granted the benefit of a constitutional rule such as Justice

Steven’s Sixth Amendment holding. But, citing Bouie v. City of Columbia, 378

U.S. 347, 353-54 (1964), he contends that retroactive applications of new judicial

interpretations of criminal statutes violate the Due Process Clause because they

impose liability ex post facto. These arguments, however, overlook the Supreme

Court’s instruction that both holdings in Booker should be applied to cases on

direct review. Booker, 125 S. Ct. at 769; Rines, 419 F.3d at 1106. Furthermore,


                                         -6-
the underlying concern of cases such as Bouie is ensuring that the defendant has

“fair warning” of criminal liability. See Rogers v. Tennessee, 532 U.S. 451, 461-

62 (2001) (the due process limitation on the retroactive application of judicial

interpretations of criminal statutes safeguard defendants against “unjustified” and

“unpredictable” breaks with prior law); Warnick v. Booher, 425 F.3d 842, 852-53

(10th Cir. 2005). Mr. Von Behren had fair warning that his conduct could subject

him to 121 months imprisonment. Indeed, the statute under which he pleaded

guilty imposed a statutory maximum of 20 years imprisonment. 18 U.S.C. §

2252A(b)(1). Had Mr. Von Behren been sentenced under a mandatory application

of the Guidelines, he could easily have been sentenced to 121 months based on

the facts stipulated in his plea agreement. See Booker, 125 S. Ct. at 756 (“Any

fact (other than a prior conviction) which is necessary to support a 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.”) (emphasis added); United States v. Dupas, 419 F.3d 916, 921

(9th Cir. 2005) (rejecting retroactivity argument where defendant had fair notice

when he committed his crime and entered his plea that his sentence could be

based on judicial determinations and set within the applicable statutory

maximum); United States v. Vaughn, --- F.3d ---, 2005 WL 3219706, at *4 (2d

Cir. Dec. 1, 2005) (finding that the relevant maximum sentence for purposes of


                                         -7-
“fair warning” was the statutory maximum, and joining “the First, Fifth, Seventh,

Ninth, and Eleventh Circuits in rejecting an ex post facto claim based on the

remedial holding in Booker”) (citations omitted). Thus, Mr. Von Behren had

“fair warning” of his possible sentence.

      We similarly reject Mr. Von Behren’s argument that sentencing him for a

greater offense when he pleaded guilty to a lesser offense violates double

jeopardy. As mentioned earlier, the statutory maximum for the count to which

Mr. Von Behren pleaded guilty was 20 years imprisonment. His sentence of 121

months fell within that statutory maximum. Accordingly, he was not sentenced

for a greater offense than that to which he pleaded guilty.

                                    Conclusion

      For the foregoing reasons, the judgment of the United States District Court

for the District of Colorado is AFFIRMED.



                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




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