                                                                FILED
                                                     United States Court of Appeals
                           UNITED STATES COURT OF APPEALS Tenth Circuit
                                                                      September 20, 2007
                                    TENTH CIRCUIT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                              No. 06-5001
 v.
                                                     (Northern District of Oklahoma)
                                                       (D.C. No. 00-CR-126-HDC)
 MARLIN JAMES MACK,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT *


Before BRISCOE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.**


       By indictment, Marlin James Mack, (the defendant), and others, were charged

inter alia with (1) conspiring to possess and distribute cocaine, crack cocaine and

marijuana in violation of 21 U.S.C. § 846; (2) possessing crack cocaine with an intent to

distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii); (3) conspiring to

commit money laundering in violation of 18 U.S.C. §1956(h); and (4) possessing



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       **
          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)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
marijuana with an intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

The indictment also alleged, inter alia, that, as an “overt act” of the conspiracy, the

defendant killed two individuals by shooting them in the head and setting their bodies on

fire. After a twenty-three day trial, a jury convicted defendant on each of the counts set

forth supra. At trial, evidence of these murders was received in support of those

allegations.

        A presentence report set defendant’s base offense level at 43, which sets a

guideline range of life imprisonment, regardless of the person’s criminal history category.

U.S.S.G.§ 2D1.1(a)(1) and U.S.S.G.§ 2A1.1. In accord therewith, the defendant on

November 25, 2002, was sentenced to life imprisonment on Counts 1 and 2, and to 240

months imprisonment on Counts 3 and 4. Defendant appealed his judgment and sentence.

       On direct appeal, this court in an unpublished opinion affirmed defendant’s

convictions on each of the four counts. United States v. Mack, 100 Fed. Appx. 752, 2004

WL 1240846 (10th Cir. 2004). (Mack I). In footnote 2 of our opinion, we stated

“because we affirm the district court on all claims, we need not address Mr. Mack’s re-

sentencing arguments.”

       The defendant petitioned the Supreme Court for writ of certiorari, which petition

was granted based on the district court’s mandatory application of the federal sentencing

guidelines. Accordingly, the Supreme Court vacated our judgment and remanded the

case to this Court for further consideration in light of United States v. Booker, 543 U.S.

220 (2005). See Mack v. United States, 543 U.S. 1107 (2005). On remand, this Court

                                             -2-
reinstated all non-sentencing portions of its previous opinion and then remanded the case

to the district court for resentencing. In remanding for resentencing, we spoke as follows:

“We cannot conclude beyond a reasonable doubt that this error is harmless.” United

States v. Mack, 130 Fed. Appx. 290, 292, 2005 WL 1060586 (10th Cir. 2005).

       On December 12, 2005, the district court resentenced defendant to life

imprisonment on Counts 1 and 2 and 240 months on Counts 3 and 4, all sentences to be

served concurrently. Defendant appeals. We affirm.

       Counsel for Mack frames the two issues on appeal as follows:

       1.     The life sentence imposed by the district court on resentencing was
              unreasonable, where the court relied, in part, on inaccurate information.

       2.      Mr. Mack’s Fifth and Sixth Amendment rights were violated by the district
              court’s enhancement of his sentence based on facts not found by a jury
              where Mr. Mack was sentenced originally prior to the issuance of the
              remedial opinion in United States v. Booker, 543 U.S. 220 (2005). This
              claim is raised for preservation purposes.

       Before considering the two matters urged by counsel on appeal, as background,

we note that in Mack I we summarized the evidence adduced at Mack’s jury trial as

follows:

              After a twenty-three day trial involving over fifty witnesses, a jury
              convicted Mr. Mack on all counts. At trial, multiple witnesses
              testified to Mr. Mack’s involvement in the conspiracy. Specifically,
              the government introduced the following evidence of Mr. Mack’s
              involvement in the conspiracy: (1) the police arrested him in 1998 at
              a Tulsa airport in connection with a marijuana shipment; (2) he
              phoned and transferred money to Mr. Bellamy frequently during
              the duration of the conspiracy; (3) Mr. Mack assisted in and super-
              vised the packaging and shipping of marijuana for the conspiracy on
              multiple occasions; (4) officers arrested Mr. Mack for possessing

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              cocaine with intent to distribute outside of a Tulsa airport as he
              returned from Phoenix; and (5) several witnesses testified that Mr.
              Mack murdered two men that he claimed stole cocaine from him.



                                              I

       At resentencing, the defendant’s counsel argued to the district court that to

enhance defendant’s sentence based on facts not found by a jury-- specifically that he

murdered two people in furtherance of the drug conspiracy–violated his Fifth and Sixth

Amendment rights to trial by jury. In thus arguing, counsel recognizes that Booker’s

remedial opinion permitted the district court to enhance defendant’s sentence using the

uncharged murders, so long as it did not apply the guidelines in a mandatory fashion.

However, at the same time, counsel goes on to suggest that such a holding would in itself

violate the ex post facto principles inherent in the Due Process Clause. On appeal,

counsel concedes that the foregoing argument was rejected by this Court in United States

v. Rines, 419 F.3d 1104 (10th Cir. 2005), and that we, as a panel, cannot overrule Rines.

Such being the case, counsel states that defendant “raises the issue to preserve it for

further review by the Supreme Court.”

                                             II.

       Counsel’s main argument is that the district court’s imposition of a life sentence

was unreasonable under 18 U.S.C. § 3553(a). She suggests that the district court’s

imposition of a life sentence on the defendant was both “unreasoned” and

“unreasonable,” citing United States v. Cage, 451 F.3d 585, 591 (10th Cir. 2006).

                                            -4-
       The starting point in our discussion is that the parties agree, for the purpose of this

case, that defendant’s base offense level is 43. As indicated, the sentencing guideline for

one with an offense level of 43 is life imprisonment, regardless of the person’s criminal

history category. And pursuant thereto, the district court resentenced defendant to

imprisonment for life on Counts 1 and 2. Thus, the sentence imposed was within the

guideline range. Such being the case, a sentence within the guideline range is

presumptively reasonable under 18 U.S.C. § 3553(a), and on appeal “the defendant may

rebut this presumption by demonstrating that the sentence is unreasonable in light of the

other sentencing factors in § 3553(a).” United States v. Kristl, 437 F. 3d 1050, 1055

(10th Cir. 2006).

       At sentencing, the district court clearly indicated that the fact that the evidence

adduced at trial proved that as a part of defendant’s participation in the drug conspiracy

the defendant had killed two persons was the primary reason that it sentenced defendant

to two terms of life imprisonment. However, the district court did indicate that there were

other facts in the case that supported its determination that a life sentence was proper and

thus reasonable. Those were (1) defendant’s role in the conspiracy; (2) his criminal

record; and (3) his participation in the invasion of the Field’s residence.1

       At the outset, it should be observed that this is not a case where, for example, a

       1
        In this general connection, we note that in United States v. Rodriguez-
Quintanilla, 442 F. 3d 1254, 1258 (10th Cir. 2006), we “emphasize that the sentencing
court is not required to consider individually each factor listed in § 3553(a) before issuing
a sentence,” citing United States v. Contreras-Martinez, 409 F.3d 1236, 1242 (10th Cir.
2005).

                                             -5-
defendant has pled guilty and accordingly, at sentencing, a district court relies primarily

on the pre-sentence report. In the instant case, the defendant did not plead guilty, but

was adjudged guilty by a jury after a 23-day trial presided over by the same judge who

thereafter sentenced him. In that situation a district court may not only rely on the

presentence report, but it also has a right to rely on what it saw and heard during the trial

itself. See United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006). Viewed

in that context, we conclude that the record, which includes a transcript of the trial,

supports the district court’s conclusion that defendant was a “leader” in this extensive

drug conspiracy case. True, the “head man” was located in Arizona, but the conspiracy

involved about six other states, and it would appear to us that the defendant was, indeed, a

“leader” in Oklahoma.

       As for defendant’s prior criminal history, the pre-sentence report indicates that the

defendant apparently had four prior convictions, and in addition several convictions

which apparently occurred when he was a juvenile. In our view, the district court did not

err in considering those matters at the sentencing of the defendant. And it is very obvious

to us that the district court did not sentence defendant to two life sentences because of his

criminal history.

       The evidence concerning the so-called “Home Invasion and Abduction at the

Fields’ residence” was that three persons forced their way into the Fields’ residence to

recover some drugs. One of the perpetrators thereof, at trial, testified that the defendant

was one of the intruders. The victim of the invasion, however, testified that he was not.

                                             -6-
So, this is simply a case of conflicting evidence. In any event, it is again clear from the

record, that the district court did not sentence the defendant to two life imprisonment

terms because of the Fields incident.

       In short, based on the present record, any possible error at sentencing was

harmless, i.e., “the error did not affect the district court’s selection of the sentence

imposed.” United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005).

       Judgment affirmed.1


                                            Entered for the Court


                                            Robert H. McWilliams
                                            Senior Circuit Judge




       1
         Shortly before this case was initially set for oral argument, defendant’s counsel
filed in this Court a “Notice Regarding Status of Appeal” in which she stated that while
the case had been pending in this Court, the State of Oklahoma had filed charges against
defendant in the district court in and for Tulsa County charging him with two counts of
murder and sought the death penalty. We were further advised that the jury on December
14, 2006, found defendant guilty of the charges and that he had been sentenced to two life
sentences to run concurrently. We are also advised that the defendant intends to appeal
his state convictions and sentences.

                                              -7-
