                                                                             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,

 v.                                                        No. 04-8042
                                                          (D. Wyoming)
 SELENA MATA, also known as                        (D.Ct. No. 03-CR-166-02-J)
 Selena Gerhardt,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, 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. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

      Selena Mata, aka Selena Gerhardt, was sentenced to 210 months



      *
          This order and judgment is not binding precedent except under the doctrines of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.
imprisonment following her guilty plea to conspiracy to possess with intent to

distribute and to distribute 500 grams or more of methamphetamine. She appeals,

arguing she was not given the proper amount of sentencing credit and was

sentenced in violation of Blakely v. Washington, 124 S.Ct. 2531 (2004).

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we

affirm.

                                  I. Background

      On July 23, 2003, Mata, while serving a six-year state court prison term for

possession with intent to distribute a controlled substance, was charged in the

United States District Court for the District of Wyoming with conspiracy to

possess with intent to distribute and to distribute 500 grams or more of

methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Mata

eventually pled guilty. At the change of plea hearing and in her plea agreement,

Mata stipulated that the amount of methamphetamine involved in the conspiracy

was more than 1.5 kilograms but less than five kilograms. A presentence

investigation report (PSR) was prepared.

      The probation officer determined Mata’s offense involved 2.04 kilograms

of methamphetamine, establishing a base offense level of 34. See USSG

§2D1.1(a)(3) and (c)(3) (assigning a base offense level of 34 for “[a]t least 1.5

KG but less than 5 KG of Methamphetamine . . .”). This drug quantity included


                                         -2-
twelve ounces (340 grams) of methamphetamine which Mata’s brother sold to

other individuals after Mata’s arrest. According to her brother, Mata asked him to

“take care of” (i.e. continue to supply methamphetamine to) these individuals

after her arrest. (R. Vol. IV at 5.) The probation officer also recommended a

two-level enhancement to the base offense level under USSG §2D1.1(b)(1) based

on the offense involving the possession of a firearm, a “dangerous weapon.” This

recommendation was based on the seizure of a .25 caliber handgun (along with

thirteen grams of methamphetamine, a scale, pay/owe sheets and other drug

paraphernalia) from Mata’s residence. Mata informed investigators she needed

the firearm for protection. Lastly, the officer recommended a three level

downward adjustment to the base offense level under USSG §3E1.1 for

acceptance of responsibility. Based on a total offense level of 33 and a criminal

history category V, the probation officer determined the applicable guideline

range was 210 to 262 months imprisonment.

       Mata filed two material objections to the PSR. First, she argued she should

not be held accountable for the twelve ounces of methamphetamine her brother

sold to other individuals, arguing she never informed her brother to continue to

supply methamphetamine to these individuals after she was arrested. 1 She also


       1
        Relying on Crawford v. Washington, 541 U.S. 36 (2004), Mata argued at
sentencing that the district court and probation officer’s use of her brother’s hearsay
statements to establish drug quantity violated her Sixth Amendment right to

                                             -3-
objected to the two level enhancement for possession of a dangerous weapon,

claiming the .25 caliber handgun could not be used to support this enhancement

because it was inoperable and wrapped in Saran Wrap.

       On April 5, 2004, Mata appeared for sentencing. As to Mata’s objection to

the twelve ounces of methamphetamine her brother sold to other individuals, the

court determined it was irrelevant as it did not change the guideline calculation,

which was based on the amount of methamphetamine she agreed to at her change

of plea hearing (i.e. more than 1.5 kilograms but less than five kilograms). The

court also overruled her objection to the two-level enhancement for possession of

a dangerous weapon, concluding that even if the handgun was inoperable, it still



confrontation. In Crawford, the Supreme Court held that “testimonial” hearsay is
inadmissible at trial unless the witness is unavailable and the defendant had a prior
opportunity for cross-examination. 541 U.S. at 68. On appeal, she re-iterates this
argument in a one paragraph statement in her opening brief. [Apt’s Br. at 16] Even
assuming she has adequately raised this issue for our review, it fails. Crawford applies to
the right to confrontation at trial, not sentencing. We have determined that neither the
Federal Rules of Evidence nor the Confrontation Clause apply to non-capital sentencing
proceedings. See United States v. Hershberger, 962 F.2d 1548, 1554 (10th Cir. 1992)
(reaffirming Tenth Circuit’s position that constitutional provisions regarding the
Confrontation Clause are not required to be applied during sentencing proceedings);
United States v. Beaulieu, 893 F.2d 1177, 1179-81 (10th Cir. 1990) (concluding Federal
Rules of Evidence do not apply at sentencing and reliable hearsay evidence can be
considered in the sentencing determination); United States v. Sunrhodes, 831 F.2d 1537,
1543-44 (10th Cir. 1987) (concluding that the requirements mandated in a criminal trial
as to confrontation and cross-examination are not applicable at sentencing proceedings).
The Federal Rules of Evidence themselves indicate they do not apply to sentencing
proceedings. See FED. R. EVID. 1101(d)(3). Because the Sixth Amendment’s
Confrontation Clause does not apply at sentencing, Crawford also does not apply.
Nothing in the Crawford decision indicates otherwise.

                                            -4-
met the definition of dangerous weapon under the guidelines because it closely

resembled one. 2 Believing that a sentence at the low end of the guideline range

was “more than adequate . . . to punish the conduct in this matter,” the court

sentenced Mata to 210 months imprisonment. 3 (R. Vol. II at 12.) Consistent with

the government’s recommendation, the court orally ordered Mata’s sentence to

run concurrent to her state court prison term and that Mata be given credit for

time served beginning on the date she was first incarcerated on the underlying

state drug charge, January 14, 2003. In the formal judgment, the court re-iterated

its “time served” determination, albeit in the form of a recommendation to the

United States Bureau of Prisons (BOP). This appeal followed. 4

                                       II. Discussion

       Mata raises two arguments on appeal: (1) she was not given the proper

credit for time served and (2) she was sentenced in violation of Blakely.

       2
         The definition of “dangerous weapon” under USSG §2D1.1(b)(1) is found in the
Commentary to USSG §1B1.1. USSG §2D1.1, comment. (n.3). “‘Dangerous weapon’
means (i) an instrument capable of inflicting death or serious bodily injury; or (ii) an
object that is not an instrument capable of inflicting death or serious bodily injury but []
closely resembles such an instrument . . . .” USSG §1B1.1, comment. (n.1(D)).
       3
         Pursuant to the plea agreement, if Mata fully and truthfully cooperated with the
government, the government would recommend at the time of sentencing or within one
year of sentencing a three-level downward departure pursuant to USSG § 5K1.1.
Although the government did not make such a motion at the sentencing hearing, it
informed the court that Mata was cooperating. It is unclear from the record whether the
government ever filed the § 5K1.1 motion.
       4
           Mata did not waive her right to appeal in her plea agreement.

                                              -5-
       A. Sentencing Credit

       Mata contends that despite her agreement with the government that her

federal sentence would begin to run on January 14, 2003, the date she entered

state custody, and the district court’s order directing the same, she only received

credit for sixty-eight days. She claims she should have received over 300 days of

credit. Although somewhat unclear, it appears Mata’s argument is that despite the

district court’s recommendation she receive credit from the time she entered state

custody, the BOP has not provided her with that credit. Mata does not

substantiate this claim with any documentation. However, even assuming her

allegations are true, her remedy lies with the BOP. A district court has no

authority to compute or award sentencing credit at sentencing; rather, it is the

Attorney General, through the BOP, which has the power to grant sentencing

credit in the first instance. United States v. Wilson, 503 U.S. 329, 334 (1992);

United States v. Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994). Thus, Mata must

first raise this issue with the BOP. Jenkins, 38 F.3d at 1144. If dissatisfied with

the BOP’s determination, she may then seek judicial review. 5 Id.




       5
         Although the district court orally ordered at sentencing that Mata receive credit
for time served as of the date she entered state custody, it had no authority to do so.
Nevertheless, a remand is not required because the order of judgment expressly refers to
this “time served” determination as a recommendation only.

                                            -6-
      B. Blakely

      Mata contends her Sixth Amendment right to a jury trial, as interpreted by

Blakely, was violated at sentencing. Specifically, she asserts her base offense

level was improperly enhanced to 34 based on the district court’s factual finding

that her offense involved more than 1.5 kilograms of methamphetamine. She

claims her guilty plea only established that her offense involved more than 500

grams of methamphetamine. She also disputes the two-level enhancement under

USSG §2D1.1(b)(1) based on the district court’s finding that she possessed a

“dangerous weapon.”

      After briefing was completed in this case, the Supreme Court decided

United States v. Booker, 125 S.Ct. 738 (2005). In Booker, the Supreme Court

extended its holding in Blakely to the federal sentencing guidelines, holding that

the Sixth Amendment requires “[a]ny 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 [to] be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 755-56. To remedy

the constitutional infirmity of the guidelines, Booker invalidated their mandatory

nature, requiring the district court to consult them in an advisory fashion. Id. at

756-57 (severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). Although Mata

has not sought to file supplemental briefing addressing Booker, raising the Sixth


                                          -7-
Amendment issue pursuant to Blakely in her opening brief is sufficient to invoke

Booker as well. United States v. Trujillo-Terrazaz, 405 F.3d 814, 817 (10th Cir.

2005). See also Booker, 125 S.Ct. at 769 (stating that “both [its] Sixth

Amendment holding and [its] remedial interpretation of the Sentencing Act” must

be applied to all cases on direct review). Consequently, we will apply the Sixth

Amendment analysis of both Booker and Blakely to this case.

       Because Mata did not raise a Sixth Amendment violation before the district

court, we review for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727,

730 (10th Cir. 2005) (en banc). To establish plain error, Mata must demonstrate

there is (1) error, (2) that is plain and (3) the error affects her substantial rights.

United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005); Gonzalez-Huerta,

403 F.3d at 732. If these three prongs are met, we may exercise our discretion to

correct the error if Mata establishes “the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings,” i.e. the fourth prong of

plain error review. Dazey, 403 F.3d at 1174; see also Gonzalez-Huerta, 403 F.3d

at 736-37.

       The first two prongs of the plain error standard have been met—there was

error and the error was plain. Gonzalez-Huerta, 403 F.3d at 732. However,

contrary to Mata’s arguments, the error was “non-constitutional Booker error.”

Id. at 731-32 (holding “non-constitutional Booker error” occurs when the district


                                            -8-
court applies the guidelines in a mandatory rather than advisory fashion, even

though the resulting sentence was calculated based solely upon facts admitted by

the defendant or found by a jury). Mata admitted at her change of plea hearing

that her offense involved more than 1.5 kilograms but less than five kilograms of

methamphetamine, supporting a base offense level of 34. As to the gun

enhancement, even if this enhancement had been omitted from the court’s

guideline calculations (and giving Mata the benefit of the three-level acceptance

of responsibility adjustment), the applicable offense level would have been 31,

resulting in a guideline range of 168 to 210 months imprisonment. Mata received

a 210-month sentence—a sentence the district court could have imposed without

the possession of a dangerous weapon enhancement. Therefore, no constitutional

error occurred as a result of this enhancement. See United States v. Yazzie, 407

F.3d 1139, 1144 (10th Cir. 2005) (en banc) (“Booker made clear that it is the

actual sentence, not the sentencing range, that must be increased based upon

judge-found facts in order to violate the Sixth Amendment . . . .”). Thus, no Sixth

Amendment violation occurred at sentencing.

      Moving to the third prong of plain error review, Mata must show that the

district court’s erroneous mandatory application of the guidelines affected her

substantial rights, that is, that it “affected the outcome of the district court

proceedings.” Dazey, 403 F.3d at 1175 (quotations omitted). However, we need


                                           -9-
not decide whether Mata has satisfied the third prong of the plain error standard

because, even if she has, we conclude she has not met the fourth prong. See

Gonzalez-Huerta, 403 F.3d at 736 (concluding it was unnecessary to determine

whether the third prong of the plain error test was 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 would result in a “miscarriage of

justice.” Dazey, 403 F.3d at 1178 (quotations omitted); Gonzalez-Huerta, 403

F.3d at 736-37. We have recognized that in most cases involving “non-

constitutional Booker error” the defendant will be unable to satisfy the fourth

prong. See Trujillo-Terrazaz, 405 F.3d at 820-21 (recognizing the difficulty in

establishing the fourth prong in cases involving “non-constitutional Booker error”

but finding that defendant had satisfied the fourth prong). Mata has not met this

demanding standard.

      Mata received a sentence within the national norm as established by the

guidelines and there is no evidence supporting a lower sentence. See Gonzalez-


                                           -10-
Huerta, 403 F.3d at 738-39 (considering in fourth prong analysis whether the

defendant received a sentence within the guidelines/national norm and whether

the record supported a lower sentence). At sentencing, the district court

recognized the devastating effects the use of methamphetamine had on Mata’s life

and her potential to lead a “worthwhile life should she be able to deal with [her]

substance abuse.” (R. Vol. II at 12.) It also acknowledged that the troubles Mata

had experienced early in life probably exposed her to substance abuse but noted

that she needed to make better choices. Moreover, it indicated that “the havoc

that has occurred in [Mata’s] life is substantial punishment in and of itself” and

sentenced her at the low end of the guideline range, concluding such sentence was

“more than adequate” to punish the conduct in this matter. (Id.) Despite these

sympathetic comments, there is nothing in the record to indicate the district court

was unhappy with the guideline sentence or that it would have been inclined to

impose a lower sentence, even had it realized it had the discretion to do so. See

United States v. Sierra-Castillo, 405 F.3d 932, 942 (10th Cir. 2005) (finding that

comments of sympathy towards a defendant’s circumstances do not in themselves

demonstrate that “the sentence implicates the kind of fundamental fairness issues

necessary to satisfy the fourth plain-error prong”); Trujillo-Terrazaz, 405 F.3d at

821 (“Even if a defendant can demonstrate that the district court felt particular

sympathy for him, and might impose a lesser sentence on remand, failing to


                                         -11-
correct [non-constitutional Booker error] would not impugn the fairness, integrity,

and public reputation of judicial proceedings. Indeed, a remand might do quite

the opposite because another defendant convicted of an identical crime under

identical circumstances could receive a different sentence from a less sympathetic

judge.”).

      While it is true that district courts now have more discretion to tailor

sentences to the “history and characteristics of the defendant” under 18 U.S.C. §

3553(a)(1), including possibly a defendant’s struggle with substance abuse, §

3553(a)(2)(D) also requires a district court to consider the need for the sentence

imposed “to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner.” Here,

the district court “strongly” recommended as part of Mata’s sentence that she be

placed in a facility where she can participate in the BOP’s Residential Drug

Abuse Treatment Program, in an apparent attempt to treat her substance abuse.

(Id. at 14.) Therefore, the district court adequately considered and addressed

Mata’s substance abuse; there is no indication the court would rely on her

substance abuse to craft a lower sentence on remand.

      Based on the above, Mata fails to satisfy the fourth prong of plain error

review; thus, we decline to exercise our discretion to correct the error.




                                         -12-
                        III. Conclusion

The judgment of the district court is AFFIRMED.



                             Entered by the Court:

                             Terrence L. O’Brien
                             United States Circuit Judge




                              -13-
