                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      September 2, 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-7100
          v.                                    Eastern District of Oklahoma
 WILLIAM JAMES CLARK,                             (D.C. No. CR-02-53-P)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      This case returns to us on remand from the United States Supreme Court.

The facts are recounted in our first opinion, United States v. Clark, 94 Fed. Appx.

769, 2004 WL 729289 (10th Cir. 2004) vacated by 125 S. Ct. 1020 (2005), and

are repeated only in relevant part. Defendant William James Clark pleaded guilty

to two charges: impersonating a federal officer, see 18 U.S.C. § 912, and

possessing a firearm after a previous felony conviction, see 18 U.S.C.

§ 922(g)(1). The presentence report (PSR) recommended that the offense level


      *
       This order and judgment is not binding precedent, except under the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.
for the felon-in-possession charge be adjusted upward four levels because he

possessed the weapon in connection with another felony, the interstate

transportation of a stolen motor vehicle. See United States Sentencing Guidelines

(USSG) § 2K2.1(b)(5). The district court found by a “preponderance of the

evidence that [Defendant’s] possession of the firearm described in count two of

the indictment during a criminal act is more than coincidental. The four-level

adjustment given in accordance with U.S. Sentencing Guidelines Section

2K2.1(b)(5) is applicable.” R. Vol. IV at 47. According to the district court, “it

[was] highly probable that the firearm did embolden [Defendant] to maintain

possession of the vehicle.” Id. at 48.

      Defendant appealed, arguing that the district court erred in not granting him

a three-level reduction for acceptance of responsibility, see USSG § 3E1.1, and in

imposing the four-level upward adjustment for possessing the firearm in

connection with another felony. We affirmed. Defendant’s petition for a writ of

certiorari was granted by the United States Supreme Court, and it vacated our

judgment and remanded for further consideration in light of United States v.

Booker, 543 U.S. __, 125 S. Ct. 738 (2005). Clark v. United States, 125 S. Ct.

1020 (2005). Defendant’s sole argument on remand is that the district court erred

when it adjusted his sentence upward based on a judge-found fact—that he

possessed the gun in connection with another felony.


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       Defendant concedes that his Booker claim is reviewed for plain error.

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

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (en banc) (internal quotation marks omitted).

Mandatory application of the sentencing guidelines is error that is “clear or

obvious at the time of the appeal” and therefore satisfies the first two prongs of

the plain-error inquiry. Id. The issue is whether Defendant satisfies the third and

fourth prongs of the test. It is unnecessary, however, to determine whether the

error affects substantial rights if it did not seriously affect the fairness, integrity,

or public reputation of judicial proceedings. Id. at 736. Because Defendant

cannot make the requisite showing on the fourth prong, we affirm his sentence

without needing to determine whether the error affects his substantial rights.

       The district court relied on a judge-found fact to enhance Defendant’s

sentence under mandatory guidelines, so the error is “constitutional Booker

error.” Id. at 731. Plain-error review is conducted “‘less rigidly when reviewing

a potential constitutional error.’” United States v. Hauk, 412 F.3d 1179, 2005 WL

1499676, at *12 (10th Cir. 2005) (quoting United States v. Dazey, 403 F.3d 1147,

1174 (10th Cir. 2005)). We have identified several non-exclusive factors relevant

to determining whether it is appropriate to exercise our discretion and reverse


                                            -3-
because of a constitutional Booker error. They include (1) whether the defendant

challenged the factual basis of the judicial finding that increased his sentence, id.

at *14; (2) the difference between the sentence based on judge-found facts and

one based on facts admitted or found by a jury, id.; (3) the strength or weakness

of the evidence supporting the sentence imposed, United States v. Lauder, 409

F.3d 1254, 1269 (10th Cir. 2005); (4) whether “objective consideration” of the

sentencing factors in 18 U.S.C. § 3553(a) suggests that a departure from the

Guidelines is appropriate, id.; and (5) whether other evidence specific to the

defendant’s case “demonstrates a complete breakdown in the sentencing process,”

id. (internal quotation marks omitted). But the key consideration in many of our

cases is “[w]hether the district court would simply reimpose the same sentence on

remand, or whether instead the sentence would likely change to a significant

degree if [the case] were returned to the district court for discretionary

resentencing.” United States v. Lawrence, 405 F.3d 888, 907 (10th Cir. 2005)

(internal quotation marks omitted).

      At least two of the factors cut in Defendant’s favor. Defendant challenged

the facts underlying the judicial finding that enhanced his sentence. He argued

that there was insufficient evidence that he possessed the gun in connection with

the felony of interstate transportation of a stolen vehicle. There is also a

substantial difference between the sentence based on judge-found facts and one


                                          -4-
that would be imposed absent the judge’s findings. Defendant’s sentencing range

with the four-level enhancement was 63-78 months; without the enhancement, the

range would have been 41-51 months. The court sentenced Defendant to 70

months’ imprisonment, the middle of the guideline range. Assuming it would

impose a sentence in the middle of the lower range as well, Defendant would have

been sentenced to 46 months, 24 months less than the sentence he received.

      The rest of the factors, however, are not in Defendant’s favor. We

considered the strength of the evidence underlying the district court’s factual

finding in the previous appeal. Defendant has offered nothing further on the

subject and we see no reason to revisit our conclusion that the district court did

not clearly err “in finding by a preponderance of the evidence that the rifle had

the potential to facilitate the underlying felony.” Clark, 2004 WL 729289, at *4.

The “factual dispute” relates less to the historical evidence than to the inferences

to be drawn from that evidence. Moreover, we have held that post-Booker

“district courts are still required to consider Guideline ranges, which are

determined through application of the preponderance standard, just as they were

before.” United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005)

(internal citation omitted). If the record indicates that the district court,

exercising discretion, would impose the same sentence that it imposed under the

mandatory guidelines, the mandatory application did not seriously affect the


                                           -5-
fairness, integrity, or public reputation of the judicial proceeding. See Lawrence,

405 F.3d at 907.

      Defendant was sentenced to 70 months’ imprisonment, the middle of the

applicable guidelines range. The district court had discretion to sentence him to

63 months, the bottom of the range, and chose not to. Furthermore, Defendant

does not offer, and our independent review of the record did not reveal, any

statements by the court indicating that it was inclined to impose a lesser sentence.

Indeed, the district court agreed with the government that the one downward

departure requested by Defendant was inapplicable. R. Vol. IV at 50 (denying

downward departure for acceptance of responsibility; Clark, 2004 WL 729289, at

*3 (affirming the denial). Finally, Defendant offers no arguments that either

objective consideration of § 3553(a)’s sentencing factors or a breakdown of the

sentencing process warrants remand.

      Thus, Defendant has not met his burden under the fourth prong of plain-

error review. Defendant’s sentence “is within the national norm and there is no

record evidence to support a lower sentence.” Magallanez, 408 F.3d at 686. See

also Lawrence, 405 F.3d at 908 (affirming a sentence when the district court

denied downward departures and sentenced above the guidelines minimum).

      We REINSTATE our previous Order and Judgment in this case and




                                         -6-
AFFIRM Defendant’s sentence after our reconsideration in light of Booker.


                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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