                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 04-2459
                                   ___________

United States of America,               *
                                        *
               Appellee,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Luke Keller,                            *
                                        *
               Appellant.               *
                                   ___________

                             Submitted: May 9, 2005
                                Filed: July 5, 2005
                                 ___________

Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Luke Keller appeals from the sentence imposed upon him by the district court1
following his guilty plea for engaging in a continuing criminal enterprise (Count 2),
a violation of 21 U.S.C. § 848, and using a firearm in a crime of violence and drug
trafficking crime (Count 5), a violation of 18 U.S.C. §§ 2 and 924(c). We affirm.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                       I.
      Between October 2000 and June 2002, Keller and several associates engaged
in a drug conspiracy in Minnesota and Iowa in which they distributed more than
27,600 grams of a mixture containing methamphetamine, 5,800 grams of “ice”
methamphetamine, 20,000 grams of cocaine, 200 grams of ecstacy, and 1,000
kilograms of marijuana. The marijuana equivalent of the combined drug quantity
exceeded 177,000 kilograms. Keller received between $20,000 and $30,000 per
month from his involvement in the drug ring.

      At some point in the conspiracy, Keller and his associates kidnapped at
gunpoint Patrick Carlone, one of Keller’s drug dealers who owed him money. After
taking Carlone to Keller’s basement, which was covered with tarps, Keller struck
Carlone in the forehead with a gun, causing him to bleed. Keller’s associates then
kicked Carlone. After the beating, two of Keller’s associates wearing rubber gloves
cleaned the carpet with a wet-dry vacuum.

       In May 2002, Greg Molitor, Jess Ballhagen, and Chris Witter stole a substantial
quantity of cash and drugs from Keller’s stash house. Keller initially suspected Brian
Anderson of the theft. According to the presentence investigation report (PSR),
Keller, aware that Anderson was coming to his house, spread a tarp over his basement
floor to protect the floor from blood. When Anderson arrived, Keller took him to the
basement, where Keller and two associates beat him. After concluding that Anderson
was not involved in the theft, Keller shifted his suspicions to Witter. Keller brought
handguns from Minnesota to Iowa and provided them to his associates, who
kidnapped Witter at gunpoint. A witness observed the abduction and contacted
police, who apprehended Keller’s associates before they harmed Witter.

       Keller pled guilty to Counts 2 and 5 pursuant to a plea agreement, whereupon
the district court sentenced him to 437 months’ imprisonment.

                                         -2-
                                             II.
       Keller asserts for the first time on appeal that the government breached the plea
agreement by introducing Keller’s proffer at sentencing. We review de novo issues
pertaining to the interpretation and enforcement of a plea agreement. United States
v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004).

       Keller’s breach argument relates to the base offense level on Count 2. Under
the terms of the plea agreement, Keller’s “base offense level [was] 38 pursuant to
USSG § 2D1.5(a)(2).” Plea Agreement at 7. The prosecutor at no time argued to the
contrary. In fact, when asked about the base offense level by the district court, the
prosecutor responded that “with regard to the base offense level, we’re bound by our
plea agreement.” Sen. Tr. at 165. The prosecutor noted that although the plea
agreement was not binding on the district court, “it is binding on us, so I have nothing
to add to [the issue of the base offense level].” Id.

       Prior to imposing sentence, the district court emphasized that, unlike the
prosecutor, it was not bound by the stipulation to the base offense level of thirty-
eight. Id. at 13. The district court concluded that:

      The base offense level involved a minimum of 177,278.39 kilograms of
      marijuana equivalent drugs. Under 2D1.5(a)(1), the base offense level
      is computed by adding four levels, plus the offense level from 2D1.1,
      and, therefore, applying the guideline, the base offense level is then
      forty-[two].

Id. at 184-85. Keller ignores the prosecutor’s and the district court’s statements and
focuses instead on the prosecutor’s introduction into evidence of Keller’s proffer
statement. Keller infers that the prosecutor must have offered the statement to




                                          -3-
support a base level offense of 42 in contravention of the plea agreement. The record
is devoid of any evidence supporting Keller’s inference.2

                                         III.
       Keller challenges on appeal four sentencing enhancements based on facts not
found by a jury beyond a reasonable doubt. Three of these enhancements apply to his
sentence on the Count 2 conviction: a two-level increase for restraint of a victim
during the offense, a two-level increase for obstruction of justice, and a two-level
increase for sanctioning the use of violence.3 The fourth challenged enhancement is
the district court’s 24-month increase to the mandatory minimum under 18 U.S.C. §
924(c) on the Count 5 conviction based on its finding that Keller brandished (rather
than simply possessed) a firearm. Although the district court used the preponderance
of the evidence standard to determine each of the four enhancements to which Keller
objects, those enhancements are not necessarily constitutionally infirm under United
States v. Booker, 125 S. Ct. 738 (2005).

                                         A.
      We have recently held that a fact in a PSR not specifically objected to is a fact
admitted by the defendant for purposes of Booker. See United States v. McCully, 407
F.3d 931, 933 (8th Cir. 2005). Further, sentencing enhancements can be supported
by admitted acts and omissions that were “. . . committed, aided, abetted, counseled,


      2
      The district court, in fact, could have arrived at a base offense level of 42
independent of the proffer statement. See infra, note 3.
      3
       Keller also alleges that the district court calculated the base offense level on
Count 2 using a preponderance of the evidence standard. Keller Br. at 7-8. Keller,
however, stipulated in his plea agreement that he and his co-conspirators distributed
more than five kilograms of ice methamphetamine, which results in an offense level
of 38 under section 2D1.1(c)(1) of the guidelines. The district court increased the
base offense level to 42 pursuant to section 2D1.5(a)(1). Accordingly, the district
court’s calculation of the base offense level did not involve factual findings.

                                         -4-
commanded, induced, procured, or willfully caused,” and include “reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity.” U.S.S.G. § 1B1.3(a)(1).

       The district court based its enhancement for restraint of a victim on section
3A1.3 of the guidelines, which provides that “[i]f a victim was physically restrained
in the course of the offense, increase by 2 levels.” Physical restraint means “the
forcible restraint of the victim such as by being tied, bound, or locked up.” Id. at
§1B1.1, commentary application notes at ¶1(K). The PSR indicates that two of
Keller’s associates tied up Carlone after Keller beat him, that Carlone was tied to “a
lawn chair with zip ties to the lawn chair cutting off circulation to [his] legs,” and that
Carlone was locked in a closet and tied up for three to four days. PSR at ¶¶76, 77, 78.
Keller’s sole objections to these statements are that he “was not involved in” the lawn
chair restraint and that he “never locked [Carlone] in a closet.” Objections to PSR at
3. Keller, however, does not dispute that any of these acts took place, and he does not
deny knowledge of the acts, which were clearly related to his criminal enterprise. We
conclude that the facts in the PSR, which are admitted for Booker purposes, justify
the district court’s enhancement for restraint of a victim.

       The district court premised its enhancement for sanctioning violence on section
2D1.5, note 2, which provides that “[i]f as part of the [continuing criminal] enterprise
the defendant sanctioned the use of violence . . . an upward departure may be
warranted.” The PSR indicates that Keller punched and kicked Anderson and that he
hit Carlone in the head with a gun. PSR at ¶¶64, 76. These facts, which Keller does
not contest, support the district court’s enhancement based upon Keller’s sanctioning
of violence.

                                         B.
      The district court increased Keller’s sentence on Count 5 based on its finding
that Keller brandished a firearm in a crime of violence and drug trafficking crime.

                                           -5-
See 18 U.S.C. § 924(c).4 The Supreme Court has concluded that such a judicial
finding does not implicate constitutional concerns:

      Basing a 2-year increase in the defendant’s minimum sentence on a
      judicial finding of brandishing does not evade the requirements of the
      Fifth and Sixth Amendments. Congress simply took one factor that has
      always been considered by sentencing courts to bear on punishment and
      dictated the precise weight to be given that factor. That factor need not
      be alleged in the indictment, submitted to the jury, or proved beyond a
      reasonable doubt.

Harris v. United States, 536 U.S. 545, 568 (2002) (internal quotes and citation
omitted). Accordingly, Keller’s challenge to this aspect of his sentence is unavailing.

                                         C.
        The enhancement for obstruction of justice is not supported by undisputed
statements in the PSR. See Objection to PSR at 3 (“Defendant objects to any
inference that he obstructed justice.”). Accordingly, we address Keller’s objection
to this enhancement in light of Booker and United States v. Pirani, 406 F.3d 543 (8th
Cir. 2005) (en banc). Because Keller did not raise a constitutional challenge to the
enhancement at sentencing, we conduct plain error review under the four-part test of


      4
        The district court made “. . . the specific finding by the preponderance of the
evidence that [Keller’s associates] brandished firearms during the abduction of
Witter” and that “[t]he Witter kidnapping was part and parcel of drug activity and
continuing criminal enterprise.” Sen. Tr. at 189. The district court also found that
Keller could be “held responsible for brandishing weapons under several theories.”
Id. at 188. The undisputed fact that Keller struck Carlone with a firearm provides
separate justification for the district court’s finding. See 18 U.S.C. § 924(c) (defining
brandish as “with respect to a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another person, in order to
intimidate that person, regardless of whether the firearm is directly visible to that
person”).

                                          -6-
United States v. Olano, 507 U.S. 725 (1993). Pirani, 406 F.3d at 549. Pursuant to
that test, before we can correct an error not raised at trial, “there must be (1) error, (2)
that is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S.
461, 466-67 (1997). If all three conditions are met, we may remedy the error only if
it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.

       The enhancement for obstruction of justice was erroneous in light of Booker
because it was imposed on the basis of judge-found facts in a mandatory guidelines
regime. See Pirani, 406 F.3d at 551. In these circumstances, the first two Olano
factors are satisfied. See id. at 550. Whether the error affected Keller’s substantial
rights is another matter. To satisfy this factor, “the defendant must show a
‘reasonable probability,’ based on the appellate record as a whole, that but for the
error he would have received a more favorable sentence.” Id. at 552.

       In calculating Keller’s offense level on Count 2, the district court began with
a base offense level of 42, subtracted three levels for acceptance of responsibility, and
added two levels each for victim restraint, sanctioning violence, and obstruction of
justice. Although these adjustments resulted in an offense level of 45, the district
court sentenced Keller at an offense level of 43, the maximum level under the
guidelines. Removing the two-level enhancement for obstruction of justice merely
reduces Keller’s offense level from 45 to 43, the same level at which he was
sentenced. Accordingly, Keller is unable to demonstrate that he was prejudiced by
the enhancement for obstruction of justice.

      We also note that nothing in the record suggests that the district court would
have sentenced Keller to a lighter sentence had it been operating under an advisory
guidelines regime. To the contrary, the district court opined that:




                                            -7-
      This is the most violent drug case that I have heard as . . . a Federal
      Court judge, and in nine years on the State bench, I never heard of any
      conduct like I have heard in this case. It’s very disturbing, whether it
      was an isolated incident or an ongoing practice.

Sen. Tr. at 191. The district court also noted that:

      In deciding where to sentence the Defendant within the range, I
      considered the nature and circumstances of the offense and the history
      and characteristics of the Defendant. In addition, the sentence was
      imposed to afford adequate deterrence to criminal conduct and protect
      the public.

Id. at 212. In light of these comments, Keller has not demonstrated a reasonable
probability of prejudicial error.

                                         IV.
       Keller’s counsel contended at oral argument that the district court erroneously
calculated Keller’s 25% reduction for substantial assistance, which applied only to
Keller’s life sentence on Count 2. The district court considered “the United States
Sentencing Commission number of 39 years as a life sentence in this case,” id. at 210,
and calculated Keller’s sentence on Count 2 to be 353 months. Keller’s counsel
suggests that the 25% reduction should have resulted in a sentence of 351 months
rather than the 353 months calculated by the district court. Although a 25% reduction
of 39 years (468 months) results in a sentence of 351 months, the sentencing
transcript makes clear that the district court’s reference to “39 years” was an
approximation and that its precise starting point was 470 months, not 468 months.
See id. at 208 (“United States Sentencing Commission says 470 months, which would
be 39.16 years.”).5 A 25% reduction of 470 months results in a sentence of 352.5


      5
      The 470-month figure is taken from the 2001 Sourcebook of Federal
Sentencing Statistics, United States Sentencing Commission, Appendix A (“Life

                                         -8-
months, which the district court rounded upward to 353 months. Neither this
calculation nor its starting point was in error.

      The sentence is affirmed.

BRIGHT, Circuit Judge, dissenting

      I would send this case back for resentencing, to allow the trial judge to consider
adopting the base offense level of thirty-eight that the parties stipulated to in the plea
agreement.

       The district court was bound by mandatory sentencing guidelines, and the facts
stipulated to in the plea agreement required a base offense level of forty-two. There
was thus a contradiction between the level that the government and Keller agreed
upon and the statutorily mandated level. The court adopted the statutorily mandated
level.

       Now that the Supreme Court has held that the guidelines are advisory rather
than mandatory, United States v. Booker, 125 S. Ct. 738 (2005), the district court
would be at liberty to adopt the lower base offense level that the government and
Keller agreed upon. Our ordinary Booker plain error analysis, see United States v.
Pirani, 406 F.3d 543 (8th Cir. 2005), does not apply here. This case – in which the
court was prevented by mandatory guidelines from giving effect to a plea agreement
– is distinguishable from Pirani.




sentences are assigned a prison length of 470 months, based on U.S. Census Bureau
average life expectancy by age of federal defendants at sentencing.”). See Sen. Tr.
at 208 and Gov’t Supp. Sen. Mem. at 2.

                                           -9-
      The district court should be given the opportunity to give effect to the plea
agreement.

      For this reason, I respectfully dissent.
                       ______________________________




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