                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          MAY 13 2005
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 03-3335
          v.                                              (D. Kansas)
 EDUARDO GUTIERREZ-AGUINIGA,                     (D.C. No. 03-CR-10038-WEB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BALDOCK, Circuit Judges.




      Defendant/Appellant Eduardo Gutierrez-Aguiniga was found guilty

following a jury trial of one count of conspiracy to possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. § 846, one count of

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), and one count of possession of a firearm in furtherance of a drug

trafficking offense, in violation of 18 U.S.C. § 924(c). He was sentenced to 352


      *
       This order and judgment is not binding precedent, except under the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.
months’ imprisonment. We affirmed his conviction and sentence. United States

v. Gutierrez-Aguiniga, 101 Fed. Appx. 328 (10th Cir. June 15, 2004)

(unpublished). 1 The Supreme Court summarily reversed and remanded our

decision for further consideration in light of United States v. Booker, 125 S. Ct.

738 (2005). Gutierrez-Aguiniga v. United States, 125 S. Ct. 1680 (2005). At our

request, the parties have filed supplemental briefs on the applicability of Booker

and subsequent Tenth Circuit cases. We REINSTATE all non-sentencing portions

of our previous opinion, and we AFFIRM his sentence.

      On February 20, 2003, a Drug Enforcement Administration (“DEA”) task

force obtained a search warrant for 1828 North Payne, Wichita, Kansas. On

February 28, law enforcement personnel arrived at that address to execute the

search warrant. In executing the search warrant, officers found Gutierrez-

Aguiniga standing in the master bedroom of the house, and encountered his three

co-defendants and another individual at various locations in and around the house.

They also found materials with methamphetamine residue on them, a digital scale,

mixtures containing methamphetamine, pistol ammunition, photographs of

Gutierrez-Aguiniga with a revolver stuck in the waistband of his pants, and


      1
        In affirming his conviction and sentence, we granted Gutierrez-Aguiniga’s
counsel’s request to withdraw as counsel pursuant to Anders v. California, 386
U.S. 738 (1967), on the ground that, “after a conscientious examination” of his
client’s case, counsel found the appeal to be “wholly frivolous.” Gutierrez-
Aguiniga, 101 Fed. Appx. at 329 (quoting Anders, 386 U.S. at 744).

                                         -2-
baggies of a white powdery substance believed to be methamphetamine. In the

living room, they found a loaded .44 magnum revolver under a sofa seat cushion.

They also found a bucket of powdered “MSM,” a veterinary supplement

commonly used to cut methamphetamine. A search of two vehicles on the

premises revealed three baggies of methamphetamine concealed in a speaker box

in one and altered headrests in the other.

      Prior to the trial, all of Gutierrez-Aguiniga’s co-defendants pled guilty,

including one, Jorge Gutierrez-Nunez, who agreed to testify against Gutierrez-

Aguiniga. At trial, he testified that, at the behest of Gutierrez-Aguiniga, he had

both purchased MSM to mix with methamphetamine and had packaged money to

purchase methamphetamine and placed them in the headrests of one of the

vehicles. Joan Patterson, a defendant in another trial, testified at Gutierrez-

Aguiniga’s trial that she had met Gutierrez-Aguiniga in March of 2002 and

bought methamphetamine from him two to four times per week. She also testified

that he advanced her methamphetamine after she was arrested.

      At his trial, Gutierrez-Aguiniga testified that, when he arrived home from

California some ten minutes before the police executed the search warrant, he

noticed the back window of his house being broken. He further testified that he

was unaware of the existence of any methamphetamine in his house or car and he

denied ever selling it. He also testified that he had been working at Cessna


                                             -3-
Aircraft to support his family, although a Cessna personnel representative

testified that he had reviewed Cessna’s employment records and nobody with the

social security number matching Gutierrez-Aguiniga was ever employed at

Cessna. A subcontractor for Cessna testified that he located an employee with the

same social security number as Gutierrez-Aguiniga but that the picture

identification of that person did not match Gutierrez-Aguiniga.

      At sentencing, the district court enhanced Gutierrez-Aguiniga’s base

offense level of 36 under the United States Sentencing Commission, Guidelines

Manual (“USSG”), by two points because Gutierrez-Aguiniga was an

organizer/leader of the drug conspiracy and by another two points for obstruction

of justice based upon false testimony Gutierrez-Aguiniga gave concerning his

purported employment, his involvement in transporting methamphetamine from

California, his whereabouts prior to the execution of the search warrant, and his

testimony that he did not see any drugs in his house, despite “evidence at trial

[that] showed overwhelmingly that the defendant’s testimony on these matters

was false.” Mem. and Order at 2, R. Vol. I, tab 148. This resulted in a total

offense level of 40 which, with a criminal history category of I, yielded a

Guideline range of 292-365 months. Without those two enhancements, Gutierrez-

Aguiniga’s Guideline range would have been 188-235 months. With only one of

the enhancements, his Guideline range would have been 235-293 months. He was


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sentenced to a total of 352 months: 292 months on each of the counts involving

drugs, to be served concurrently, and a consecutive 60-month sentence on the

possession of a firearm count. 2

      As the Supreme Court made clear in Booker, such enhancements,

mandatorily imposed based on judge-found facts, violate the Sixth Amendment.

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.”); United States v. Bush, No. 03-

4224, __ F.3d __, 2005 WL 950650, at *11 (10th Cir. Apr. 26, 2005). To remedy

this constitutional infirmity, the Court rendered the Guidelines advisory.

      Although Gutierrez-Aguiniga contested the evidentiary basis for the judge-

found facts, he did not argue at trial or sentencing that the use of the Guidelines

was unconstitutional. Because he failed to raise that issue below, we review the

district court’s sentencing decision for plain error. Bush, 2005 WL 950650, at

*11; United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005); United States

v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). “Plain error

occurs when there is (1) error, (2) that is plain, which (3) affects substantial




      By statute, the sentence imposed under § 924(c) must be served
      2

consecutively to any other sentence. 18 U.S.C. § 924(c)(1)(D)(ii).

                                          -5-
rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (further quotation

omitted). We apply this analysis “less rigidly when reviewing a potential

constitutional error.” Dazey, 403 F.3d at 1174 (further quotation omitted).

      As indicated, the district court’s application of then-mandatory Guidelines

and reliance upon judge-found facts to increase Gutierrez-Aguiniga’s sentence

beyond the maximum authorized by the jury’s verdict violated Gutierrez-

Aguiniga’s Sixth Amendment rights and therefore was a constitutional error.

That error is plain. Id. at 1174-75. We now must determine whether that error

affected Gutierrez-Aguiniga’s substantial rights.

      To show that his substantial rights were affected, Gutierrez-Aguiniga “must

show a reasonable probability that the defects in his sentencing altered the result

of the proceedings.” United States v. Mozee, No. 04-8015, __ F.3d __, 2005 WL

958498, at *7 (10th Cir. Apr. 27, 2005) (internal quotation omitted). We have

held that a defendant may make this showing with respect to a constitutional

Booker error in at least two ways:

             First, if the defendant shows a reasonable probability that a
      jury applying a reasonable doubt standard would not have found the
      same material facts that a judge found by a preponderance of the
      evidence, then the defendant successfully demonstrates that the error
      below affected his substantial rights. . . . Second, a defendant may
      show that the district court’s error affected his substantial rights by
      demonstrating a reasonable probability that, under the specific facts
      of his case as analyzed under the sentencing factors of 18 U.S.C.

                                          -6-
      § 3553(a), the district court judge would reasonably impose a
      sentence outside the Guidelines range.

Dazey, 403 F.3d at 1175 (footnote omitted). The defendant bears the burden to

establish that his substantial rights were affected. Id.

      While Gutierrez-Aguiniga’s supplemental brief does not address this issue,

we consider whether there is a reasonable probability that a jury applying a

reasonable doubt standard would not have found that he was a leader or organizer

of the drug enterprise or that he obstructed justice. 3 We conclude Gutierrez-

Aguiniga has failed to show that there is such a reasonable probability. With

respect to the obstruction of justice enhancement, the district court heard

argument from both parties about the evidence supporting such an enhancement.




      3
        In his supplemental pro se brief, the only argument Gutierrez-Aguiniga
seriously pursues is an argument he has never made before—namely, “that the
district court erred by sentencing him under 21 U.S.C. § 841(b)(1)(A)(viii), for a
crime involving more than fifty (50) grams of methamphetamine, because the
drug quantity statute was not charged in the indictment. GUTIERREZ-
AGUINIGA should be resentenced under the Blakely/Booker advisory guideline
regime, under 21 U.S.C. § 841(b)(1)(C) for a crime involving an indeterminate
amount of drugs.” Appellant’s Supp. Br. at 6. Aside from being untimely, to the
extent this argument challenges the adequacy of the indictment, we have already
rejected Gutierrez-Aguiniga’s arguments about the adequacy of the indictment in
our previous opinion in this case, which we have reinstated in pertinent part. To
the extent he argues that there was a Sixth Amendment error in the calculation of
the drug quantity, he never made any argument before the district court
concerning drug quantity and he fails even now to develop such an argument,
other than to claim that the indictment was deficient.

                                          -7-
The district court judge, who had observed Gutierrez-Aguiniga throughout the

trial, recounted that:

      [t]he defendant testified falsely at trial that he did not intentionally
      transport methamphetamine back to California in a Ford Contour;
      that on the day he was arrested he did not see any drugs in his house.
      The evidence at trial showed overwhelmingly that the defendant’s
      testimony on these matters and others was false.

R. Vol. VI at 17-18. Gutierrez-Aguiniga has failed to show that a jury applying a

reasonable doubt standard would conclude any differently.

      We reach the same conclusion with respect to the enhancement for being a

leader or organizer. Again, the district court heard argument from both sides on

the evidence supporting such an enhancement, and concluded “[t]he evidence at

trial showed that the defendant was in fact a supervisor or leader of his co-

defendants; that he recruited and directed other individuals including Mr.

Gutierrez-Nunez in the commission of the offense.” Id. at 18. The record

overwhelmingly supports that finding as well. Furthermore, nothing else in the

record indicates that the district court, considering Gutierrez-Aguiniga’s

background, conduct and offense, in light of the 18 U.S.C. § 3553(a) sentencing

factors, would impose a different sentence under a discretionary sentencing

regime. Gutierrez-Aguiniga has accordingly failed to demonstrate that his

substantial rights were affected by the district court’s sentencing error.




                                          -8-
      Were we to assume arguendo that Gutierrez-Aguiniga had established that

his substantial rights were affected, we would turn to the fourth prong of plain

error review and consider whether he has demonstrated that the “Booker error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Clifton, No. 04-2046, ___ F. 3d ____, 2005 WL

941581, at *6 (10th Cir. Apr. 25, 2005); Gonzalez-Huerta, 403 F.3d at 736.

Among the non-exclusive factors we may consider in determining whether to

exercise our discretion under the fourth plain-error prong are (1) whether the

Booker error is a constitutional error, which “will be more freely noticed,”

Clifton, 2005 WL 941581, at *6; (2) “the strength or lack of evidence supporting

the defendant’s sentence under the Guidelines,” id.; and (3) “whether the Booker

error substantially increased the defendant’s sentence.” Id. While the error here

was constitutional, the evidence supporting the enhancements was substantial and

the enhancements increased Gutierrez-Aguiniga’s offense level by only four

levels. By contrast, we have noticed a constitutional Booker error where the

judge-found facts authorized a twenty-level enhancement, Dazey, 403 F.3d at

1179, and where the district court judge expressly stated that he would have

assessed a ten-level lower offense level but for the mandatory application of the

Guidelines. Clifton, 2005 WL 941581, at *7. Gutierrez-Aguiniga therefore




                                           -9-
cannot show that the district court’s sentencing error seriously affected the

fairness, integrity, or public reputation of judicial proceedings.

      For the foregoing reasons, we AFFIRM Gutierrez-Aguiniga’s sentence.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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