                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           July 3, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                            No. 04-6261
 v.                                                     (W .D. Oklahoma)
                                                     (D.Ct. No. CR-03-233-R)
 TR AV IS EM A N U EL B AILEY ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before KELLY, O’BRIEN, and TYM KOVICH, 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(G). The case is

therefore ordered submitted without oral argument.

      Pursuant to a plea agreement, which contained a waiver of appellate rights,

Travis Bailey pled guilty to possession of a firearm by an unlawful user of a




      *
          This order and judgment is not binding precedent except under the doctrines of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.
controlled substance and was sentenced to 120 months imprisonment. He appeals

his sentence, arguing the district court misapplied the guidelines, there was

insufficient evidence supporting the enhancements to his sentence and his Sixth

Amendment rights were violated pursuant to Blakely v. Washington, 542 U.S. 296

(2004). The Government asserts, inter alia, that Bailey’s appeal is precluded by

his waiver of appellate rights in the plea agreement. Exercising jurisdiction under

18 U.S.C. § 1291, see United States v. Hahn, 359 F.3d 1315, 1322, 1324 (10th

Cir. 2004) (en banc), we enforce Bailey’s w aiver of appellate rights w ith regard to

his challenge to the district court’s application of the guidelines and the

sufficiency of the evidence supporting the enhancements to his sentence.

Consequently, we dismiss that portion of his appeal. How ever, as to his Blakely

argument, we conclude it is not precluded by his waiver. Nevertheless, we affirm

his sentence, finding the Sixth Amendment error at sentencing harmless.

                                   I. Background

      On December 10, 2001, the United States M arshal Service (USM )

apprehended Jerome Barr, a fugitive, on property owned by Bailey located in

W anette, Oklahoma. The property consisted of at least sixty acres and contained

a mobile home trailer w here Bailey and his fiancé resided, a travel trailer w here

Doreena Travis and Darrell Sneed lived, a single-family house which Bailey was

in the process of constructing (the unfinished house), and several outbuildings.

Bailey consented to a search of the property. The USM discovered a clandestine

                                          -2-
methamphetamine laboratory and numerous firearms. The USM informed the

Bureau of Alcohol Tobacco and Firearms (ATF), whose agents conducted a

further search of the property.

      In the mobile home trailer, ATF agents found materials used in the

manufacturing of methamphetamine, drug ledgers, over twenty-five firearms

(some of which were loaded) and ammunition. In the unfinished house, where the

suspected methamphetamine lab was located, agents discovered a one-gallon jar

containing a light-green liquid, which was tested and identified as

methamphetamine, and various items used in the manufacturing of

methamphetamine. The next day, the agents obtained and executed a search

warrant at the travel trailer. 1 There, they found six firearms (two of w hich w ere

loaded), ammunition and approximately one-quarter pound of marijuana.

      Later, in September 2003, ATF agents received information that explosions

were occurring on or near Bailey’s property. Consequently, ATF agents obtained

another warrant to search Bailey’s property to obtain evidence of the possession

or manufacturing of improvised explosive devices. On September 30, 2003, they

executed the warrant, discovering numerous firearms and ammunition, as well as

marijuana, methamphetamine and other drug paraphernalia.

      On October 20, 2003, a criminal complaint was filed against Bailey



      1
       Although Bailey consented to the search of the entire property, because Travis
owned the travel trailer, agents obtained a warrant to search it.

                                          -3-
charging him with (1) aiding and abetting the attempted manufacture of

methamphetamine in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2(a) (Count

1) and (2) possession of a firearm (a Colt, M odel Peacemaker, .22 caliber

revolver) 2 in furtherance of a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1)(A) (Count 2). Bailey was arrested two days later. On November 12,

2003, Bailey was re-charged by information with possession of a firearm (the Colt

revolver) by an unlawful user of a controlled substance in violation of 18 U.S.C.

§ 922(g)(3). On December 3, 2003, pursuant to a plea agreement, Bailey pled

guilty to the information and a presentence investigation report (PSIR) was

prepared.

      Section 2K2.1 of the United States Sentencing Guidelines, the guideline

applicable to a violation of 18 U.S.C. § 922(g)(3), provides a cross-reference to

USSG §2X1.1 if “the defendant used or possessed any firearm or ammunition in

connection with the commission or attempted commission of another offense, or

possessed or transferred a firearm or ammunition with knowledge or intent that it

would be used or possessed in connection with another offense . . . .” USSG

§2K2.1(c)(1)(A). 3 Section 2X1.1 applies to attempts, solicitations and



      2
        This revolver was discovered in the master bedroom of the mobile home during
the December 10, 2001 search.
      3
        Because Bailey was sentenced pursuant to the 2001 edition of the United States
Sentencing Guidelines Manual, all guideline citations refer to the 2001 edition, unless
noted otherwise.

                                           -4-
conspiracies and requires the court to apply “[t]he base offense level from the

guideline for the substantive offense, plus any adjustments from such guideline

for any intended offense conduct that can be established with reasonable

certainty.” USSG §2X1.1(a). Applying the cross-reference to §2X1.1 contained

in §2K 2.1, the probation officer determined the substantive offense was a

violation of 21 U.S.C. § 841(a)(1) (the manufacture of methamphetamine) and

therefore applied its applicable guideline, USSG §2D1.1. Based on a finding that

the substantive offense involved 7,931.1988 kilograms of marijuana equivalent, 4

the probation officer concluded the base offense level w as 34. See USSG

§2D1.1(c)(3) (assigning a base offense level of 34 for “[a]t least 3,000 KG but

less than 10,000 K G of M arijuana. . .”). The probation officer then added two

levels pursuant to §2D1.1(b)(1) because Bailey possessed dangerous weapons

during the commission of the offense. After applying a three-level downward




       4
         The probation officer held Bailey accountable for the methamphetamine (3,
789.4059 grams) and marijuana (187 grams) found during the two searches of his
property. It also held him responsible for methamphetamine he sold to Doreena Travis
(six grams) and Darrell Sneed (170.10 grams). Because both marijuana and
methamphetamine were involved, the probation officer converted the amount of
methamphetamine to its marijuana equivalent. See §2D1.1, comment. (n.10) (“The Drug
Equivalency Tables also provide a means for combining differing controlled substances
to obtain a single offense level. In each case, convert each of the drugs to its marijuana
equivalent, add the quantities, and look up the total in the Drug Quantity Table to obtain
the combined offense level.”). At sentencing, in proving drug quantity, the Government
only established the existence of the one gallon jar of methamphetamine (3,785 grams)
found in the unfinished house on December 10, 2001, because this amount alone
supported an offense level of 34.

                                            -5-
adjustment for acceptance of responsibility (see USSG §3E1.1), the probation

officer determined the total offense level was 33.

       Based on his prior convictions, the probation officer concluded Bailey’s

criminal history score was II. However, because Bailey was serving two one-year

suspended state court sentences at the time he committed the instant offense, the

officer added two points, resulting in a criminal history category of III. See

USSG §4A1.1(d) (“Add 2 points if the defendant committed the instant offense

while under any criminal justice sentence, including probation, parole, supervised

release, imprisonment, work release, or escape status.”). Based on a total offense

level of 33 and a criminal history category of III, the probation officer calculated

the guideline range as 135 to 168 months imprisonment. However, because the

statutory maximum was ten years, see 18 U.S.C. § 924(a)(2), the probation officer

concluded the guideline sentence was 120 months.

       Bailey filed numerous objections to the PSIR. In relevant part, he argued

(1) he should not be held accountable for any quantity of drugs, (2) the

application of the cross-reference to USSG §2X1.1 contained in USSG §2K2.1

was improper, and (3) the gun enhancement w as inappropriately applied.

Additionally, both parties filed sentencing memoranda regarding the impact of

Blakely. 5



       5
          In Blakely, the Washington state court enhanced the defendant’s sentence based
on its finding that the defendant acted with “deliberate cruelty,” a fact neither admitted by

                                             -6-
      On August 10, 2004, Bailey was sentenced. At sentencing, the Government

offered the testimony of A TF Agent Timothy Kelly in response to Bailey’s

objections to the PSIR. Although it struck two paragraphs of the PSIR (which did

not affect the probation officer’s sentencing calculations), the court overruled the

remainder of Bailey’s objections, presumed the guidelines were constitutional and

sentenced Bailey to 120 months imprisonment. However, it did provide an

alternative sentence of 120 months in the event the guidelines were found to be

unconstitutional. It concluded: “Given [Bailey’s] criminal history and the

weapons and methamphetamine involved in this case, I think that is an

appropriate sentence either under the guidelines or assuming that they are

unconstitutional.” (Sentencing Tr. at 40.) This appeal followed.

                                    II. Discussion

      On appeal, Bailey challenges his sentence arguing (1) the application of the

cross-reference contained in §2K2.1 was improper, (2) the imposition of the

weapon enhancement was inappropriate because there was no evidence



the defendant nor proven to a jury beyond a reasonable doubt. 542 U.S. at 300. Even
though the defendant’s sentence did not exceed the statutory maximum contained in his
offense of conviction, the Supreme Court invalidated it. Id. at 303-05. In doing so, it
applied its decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.”) but clarified that “the statutory maximum for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Id. at 303 (quotation marks and emphasis
omitted).

                                           -7-
demonstrating any of the firearms found in the mobile home w ere possessed or

used in connection with any illegal activity, (3) the Government failed to present

reliable evidence that the one-gallon jar of light-green liquid was

methamphetamine as opposed to waste water, and (4) he was sentenced in

violation of the Sixth Amendment as defined in Blakely. In response, the

Government argues Bailey waived his right to appeal his sentence in the plea

agreement. It contends we should enforce the w aiver and dismiss his appeal. In

the event the appellate waiver is held unenforceable, the Government asserts the

cross-reference was correctly applied and there was more than sufficient evidence

supporting the weapon enhancement and the court’s drug quantity determination.

The G overnment also argues Blakely has not been extended to the federal

sentencing guidelines.

      W e first address whether Bailey’s appeal is precluded by his waiver of

appellate rights. For ease of reference, we will refer to Bailey’s first three

arguments as arguments alleging the district court misapplied the guidelines and

there was insufficient evidence supporting the enhancements to his sentence.

      A. W aiver of Appellate Rights

      In resolving appeals brought by defendants w ho have waived their appellate

rights in a plea agreement, we consider: “(1) whether the disputed appeal falls

within the scope of the waiver of appellate rights; (2) whether the defendant

knowingly and voluntarily waived his appellate rights; and (3) whether enforcing

                                          -8-
the waiver would result in a miscarriage of justice . . . .” Hahn, 359 F.3d at 1325.

             1. Scope of Waiver

      W e narrowly construe the scope of an appellate waiver and any ambiguities

will be read against the government and in favor of the defendant’s appellate

rights. Id. The plea agreement in this case contained the following waiver of

appellate rights:

      [D]efendant in exchange for the promises and concessions made by
      the United States in this plea agreement, knowingly and voluntarily
      waives his right to:

      a. Appeal or collaterally challenge his guilty plea and any other
      aspect of his conviction, including but not limited to any rulings on
      pretrial suppression motions or any other pretrial dispositions of
      motions and issues;

      b. Appeal, collaterally challenge, or move to modify under 18
      U.S.C. § 3582(c)(2) or some other ground, his sentence as imposed
      by the Court and the manner in which the sentence is determined,
      provided the sentence is within or below the applicable guideline
      range determined by the Court to apply to this case. Defendant
      acknowledges that this w aiver remains in full effect and is
      enforceable, even if the Court rejects one or more of the positions of
      the United States or defendant set forth in paragraph 7 concerning the
      application of the U.S. Sentencing Guidelines[;] 6

      c. It is provided that (i) defendant specifically does not waive the
      right to appeal an upward departure from the sentencing guideline
      range determined by the Court to apply to this case, and (ii) his
      waiver of rights to appeal and to bring collateral challenges shall not
      apply to appeals or challenges based on changes in the law reflected
      in Tenth Circuit or Supreme Court cases decided after the date of this



      6
       In Paragraph 7, the parties agreed Bailey should receive a downward adjustment
under USSG §3E1.1 for acceptance of responsibility.

                                         -9-
       agreement that are held by the Tenth Circuit or Supreme Court to
       have retroactive effect.

(R OA, Vol. 1, Doc. 16 at 10-11.)

       Based on this language, Bailey agreed to a broad w aiver of appellate rights,

limiting his right to appeal his sentence to two specific circumstances: (1) the

imposition of an upward departure, and (2) a change in law held to have

retroactive effect. None of Bailey’s arguments on appeal concern an upward

departure; in fact, the district court did not depart upward from the guideline

range. M oreover, Bailey’s arguments alleging the district court misapplied the

guidelines and there was insufficient evidence supporting the enhancements to his

sentence are not based on a change in law held to have retroactive effect.

Therefore, these arguments are within the scope of the appellate waiver.

How ever, Bailey’s Blakely argument, which we analyze in light of the Supreme

Court’s Booker decision, 7 concerns a “change[] in the law . . . decided after the

date of th[e] agreement that [was] held by the . . . Supreme Court to have

retroactive effect.” See United States v. Booker,543 U.S. 220, 268 (2005) (“[W ]e




       7
         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.” 543 U.S. at 244. 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 245-46
(severing and excising 18 U.S.C. §§ 3553(b)(1), 3742(e)).

                                            -10-
must apply today’s holdings--both the Sixth Amendment holding and our remedial

interpretation of the Sentencing Act--to all cases on direct review.”); 8 see also

United States v. Taylor, 413 F.3d 1146, 1153 (10th Cir. 2005) (construing similar

language in plea agreement to allow appeal of sentence under Booker).

Therefore, Bailey has not waived his right to challenge his sentence under

Booker.

      W e now consider the remaining Hahn factors to determine whether we

should enforce Bailey’s waiver of appellate rights as to his arguments concerning

the district court’s application of the guidelines and the sufficiency of the

evidence supporting the enhancements to his sentence.

             2. Knowing and Voluntary

      In determining whether a defendant knowingly and voluntarily waived his

appellate rights, we look to two factors: (1) whether the plea agreement states the

defendant entered into the agreement knowingly and voluntarily, and (2) whether

an adequate Rule 11 colloquy occurred betw een the defendant and the court.

Hahn, 359 F.3d at 1325. Both conditions are satisfied in this case. The waiver of

appellate rights section of the plea agreement informs Bailey of his right to appeal

the judgment and sentence imposed by the district court. It also states he



      8
         While “Booker does not apply retroactively to criminal cases that became final
before its effective date of January 12, 2005,” this is not such a case. United States v.
Bellamy, 411 F.3d 1182, 1184, 1188 (10th Cir. 2005) (holding that “like Blakely, Booker
does not apply retroactively on collateral review”).

                                           -11-
“knowingly and voluntarily” waives that right (unless the court imposes an

upward departure or there is a change in law held to have retroactive effect).

(ROA, Vol. 1, Doc. 16 at 10.) At his change of plea hearing, the court explained

to Bailey the rights he was w aiving by pleading guilty, including the right to

appeal his sentence. It also asked Bailey whether he understood the w aiver;

Bailey stated he did. Therefore, we conclude Bailey’s w aiver of appellate rights

was knowing and voluntary.

              3. M iscarriage of Justice

       There are at least four situations in which a miscarriage of justice may

occur: (1) the district court relied upon an impermissible factor such as race, (2)

ineffective assistance of counsel in the negotiation of the waiver renders it

invalid, (3) the sentence exceeds the statutory maximum, or (4) the waiver is

otherw ise unlawful. Hahn, 359 F.3d at 1327. Clearly, the first three situations

are not at issue here— the district court did not rely on an impermissible factor,

there is no claim defense counsel was ineffective in negotiating the waiver, 9 and




       9
         Bailey was represented by Larry Speer during the negotiation of the plea
agreement and at the change of plea hearing. Sentencing was set for April 29, 2004; Mr.
Speer failed to appear. A bench warrant was issued for his arrest. On May 3, 2004,
current counsel was appointed to represent Bailey. Subsequently, Mr. Speer was held in
contempt. Despite Mr. Speer’s failure to appear for sentencing, there is no indication that
his previous representation of Bailey, including the negotiation of the plea agreement,
was ineffective. Indeed, at the change of plea hearing, in response to the court, Bailey
stated he was satisfied with the services of his attorney and believed Speer had done all he
could to counsel and assist him in the matter.

                                           -12-
Bailey’s sentence did not exceed the statutory maximum. 10 Thus, the only issue

under the miscarriage of justice prong is whether Bailey’s waiver was “otherwise

unlawful.” “For a waiver to be otherwise unlawful, the error must seriously affect

the fairness, integrity or public reputation of judicial proceedings, as that test was

employed in United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123

L.Ed.2d 508 (1993).” United States v. Green, 405 F.3d 1180, 1194 (10th Cir.

2005) (quotations omitted).

      Bailey argues that to enforce the w aiver and deny him his day in court

would be a miscarriage of justice because a successful appeal would reduce his

sentence by at least eighty-five percent. He contends that absent the district

court’s sentencing errors, he would only have been exposed to a guideline range

of twelve to eighteen months. The essence of Bailey’s complaint is that although

he pled guilty to possession of a firearm by an unlawful user of a controlled

substance in violation of 18 U.S.C. § 922(g)(3), he was punished for

manufacturing methamphetamine and possessing a firearm in furtherance of a

drug trafficking crime, both of which were initially alleged against him in the




      10
          “‘[S]tatutory maximum’ under the Hahn miscarriage of justice inquiry refers to
the statute of conviction,” not as the term is defined by Blakely (see supra n.5). United
States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005). Here, the penalty provision to
which Bailey pled was 18 U.S.C. § 924(a)(2), which carries a ten year maximum term of
imprisonment. Bailey’s sentence does not exceed that maximum. In fact, although
Bailey’s guideline range was 135 to 168 months imprisonment, his statute of conviction
limited his sentence to 120 months.

                                           -13-
criminal complaint but later dismissed. However, by pleading guilty to violating

§ 922(g)(3), Bailey avoided the statutory maximum of twenty years imprisonment

for the manufacturing of methamphetamine 11 and the consecutive mandatory

minimum five-year term of imprisonment required for possessing a firearm in

furtherance of a drug trafficking crime. 12 He also received the benefit of a

downward adjustment for acceptance of responsibility. Therefore, we cannot

conclude that enforcement of the waiver in this case— where Bailey, the

Government and society at large have all benefitted— would result in a

miscarriage of justice. See Hahn, 359 F.3d at 1318 (“[W]e generally enforce plea

agreements and their concomitant waivers of appellate rights . . . because public

policy strongly supports such waivers as they benefit defendants, the government,

and society at large.”).

      Based on the above, we conclude Bailey’s w aiver of appellate rights is

enforceable with respect to his arguments that the district court misapplied the

guidelines and there was insufficient evidence supporting the enhancements to his



      11
        21 U.S.C. § 841(b)(1)(C) provides a maximum term of twenty years
imprisonment for the manufacturing of an indeterminate amount of methamphetamine, a
Schedule II controlled substance.
      12
         The criminal complaint sought to penalize Bailey for possession of a firearm in
furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(ii). This
subsection requires a mandatory minimum sentence of seven years if the firearm was
brandished. However, even if the firearm was not brandished, Bailey was facing a
consecutive five-year mandatory minimum term of imprisonment had he been convicted
under the criminal complaint. See 18 U.S.C. § 924(c)(1)(A)(i).

                                          -14-
sentence. Therefore, we dismiss his appeal as to these arguments. However,

because his waiver does not extend to his Blakely/Booker argument, we turn to it

now .

        B. Blakely/Booker

        Bailey argues he was sentenced in violation of the Sixth Amendment as

interpreted by Blakely/Booker based on the district court’s factual findings which

led to the application of the cross-reference to USSG §2X1.1 contained in USSG

§2K2.1, the application of a base offense level of 34, and the imposition of the

USSG §2D1.1(b)(1) weapons enhancement. He also complains his Sixth

Amendment rights w ere violated when the district court added two points to his

criminal history based on its finding that he committed the current offense while

serving two one-year suspended state court sentences. Although the imposition of

two points in the calculation of his criminal history category does not implicate

the Sixth Amendment based on Blakely and Booker’s prior conviction exception,

the remainder of Bailey’s complaints constitute constitutional Booker error. See

United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.) (en banc)

(constitutional Booker error occurs when the district court relies upon judge-

found facts (other than a prior conviction) to enhance a defendant’s sentence

mandatorily), cert. denied, 126 S.Ct. 495 (2005).

        Here, unlike many of the cases currently on appeal, Bailey raised Blakely in

the district court, arguing it applied to the federal sentencing guidelines.

                                         -15-
Therefore, our inquiry is whether the court’s constitutional error at sentencing

was harmless under F ED . R. C RIM . P. 52(a). United States v. Lang, 405 F.3d

1060, 1064 (10th Cir. 2005). Rule 52(a) states: “Any error, defect, irregularity,

or variance that does not affect substantial rights must be disregarded.” The

government bears the burden of demonstrating the error w as harmless and in

cases involving constitutional error, must do so beyond a reasonable doubt. Lang,

405 F.3d at 1065.

       In this case, we have little difficulty in concluding that the constitutional

error at sentencing was harmless based on the district court’s imposition of the

same sentence in the event the guidelines w ere found to be unconstitutional. 13

Therefore, unlike in United States v. Labastida-Segura, we are not placed in a

“zone of speculation or conjecture” as to w hether the district court would impose



       13
         The Government’s brief in this case was filed prior to Booker. Therefore, in
response to Bailey's Blakely argument, the Government asserted Blakely did not apply to
the federal sentencing guidelines. Neither party sought to file supplemental briefing
concerning Booker, nor did we order such filing. Thus, the Government has not
attempted to satisfy its burden that the constitutional Booker error at sentencing was
harmless. However, this failure is not fatal. We have discretion to initiate harmless error
review in an appropriate case. United States v. Torrez-Ortega, 184 F.3d 1128, 1136 (10th
Cir. 1999). In exercising this discretion, we should consider: “(1) the length and
complexity of the record, (2) whether the harmlessness of the errors is certain or
debatable; and (3) whether a reversal would result in protracted, costly, and futile
proceedings in the district court.” United States v. Samaniego, 187 F.3d 1222, 1225 &
n.2 (10th Cir. 1999) (questioning whether third factor “contributes to a court’s decision in
determining whether to exercise its discretion to sua sponte address the issue of
harmlessness”). This case is an appropriate case to exercise that discretion—the record is
small and not complex and the harmlessness of the Booker error, as we will address, is
not debatable.

                                            -16-
the same sentence under a post-Booker sentencing scheme; we know it w ould.

396 F.3d 1140, 1143 (10th Cir. 2005). Additionally, although the district court

did not cite to 18 U.S.C. § 3553(a) 14 when imposing the alternative sentence, the

court’s remarks at sentencing clearly indicate its belief that a 120 month sentence

was appropriate given Bailey’s criminal history and the circumstances of the case.

W e addressed that issue in United States v. Corchado, 427 F.3d 815 (10th Cir.),

cert. denied, 126 S.Ct. 1811 (2005). There, in a non-constitutional Booker case,

we found remand was unncessary because we knew what the district court would

do because it had imposed an alternative sentence in the event the guidelines were



      14
           Section 3553(a) states in relevant part:

      (a) Factors to be considered in imposing a sentence.--The court shall impose a
      sentence sufficient, but not greater than necessary, to comply with the purposes set
      forth in paragraph (2) of this subsection. The court, in determining the particular
      sentence to be imposed, shall consider--

      (1) the nature and circumstances of the offense and the history and characteristics of
      the defendant;

      (2) the need for the sentence imposed--

                (A) to reflect the seriousness of the offense, to promote respect for the law, and
                to provide just punishment for the offense;

                (B) to afford adequate deterrence to criminal conduct;

                (C) to protect the public from further crimes of the defendant; and

                (D) to provide the defendant with needed educational or vocational training,
                medical care, or other correctional treatment in the most effective manner . .
                ..

                                               -17-
found unconstitutional. We said:

      Although the district court did not specify that it was applying the
      sentencing methodology suggested in Booker-namely consultation of
      the advisory Guidelines and the factors listed in 18 U.S.C. § 3553(a)-
      we know that the court consulted the Guidelines and adopted the
      findings in the PSR, which analyzed several of the factors set forth in
      18 U.S.C. § 3553(a). See U nited States v. Rines, 419 F.3d 1104,
      1107 (10th Cir. 2005) (noting that we do not require the district court
      to “march through § 3553(a)'s sentencing factors” before we uphold a
      sentence). Because we are confident that the district court would
      impose the same sentence upon remand, we affirm the district court's
      decision.

Id. at 821.

      Similarly, in United States v. Cornelio-Pena, the district court imposed an

alternative sentence in the event the guidelines were held unconstitutional. 435

F.3d 1279 (10th Cir), cert. denied, 126 S.Ct. 2366 (2006). In imposing the

alternative sentence (w hich w as the same sentence imposed under the mandatory

scheme), the court referred to § 3553(a) but did not expressly state any of its

factors. O n appeal, we concluded the non-constitutional Booker error at

sentencing was harmless. In doing so, we stated:

             In United States v. Serrano-Dominguez, we held non-
      constitutional Booker error was harmless when the district court
      imposed an alternative sentence. 406 F.3d 1221, 1223-24 (10th Cir.
      2005). Although the district court in Serrano-Dominguez explicitly
      applied the factors in 18 U.S.C. § 3553(a) as suggested by the C ourt
      in Booker, we have subsequently held that a district court need not
      explicitly examine each of the § 3553(a) factors so long as the court
      consults the Guidelines and the Presentence Investigation Report
      (“PSR”), w hich analyzes several of the § 3553(a) factors. Corchado,
      427 F.3d at 821. The district court did not specifically    discuss the
      § 3553(a) factors in this case. It did, however, consult the

                                         -18-
      Guidelines and the PSR and consider Cornelio-Pena's motion for a
      downward departure. Thus, the district court examined several of the
      § 3553(a) factors in imposing its alternative sentence. Because we
      are confident Cornelio-Pena would receive the same sentence on
      remand, the district court's error was harmless.

Id. at 1289.

      In this case, although the district court did not expressly mention § 3553(a)

when it imposed the alternative sentence, it apparently considered several of its

§ 3553(a) factors when it said a 120-month sentence was appropriate given

Bailey's criminal history and the circumstances of the case, namely, the weapons

and methamphetamine involved in the case. See § 3553(a)(1). It also consulted

the guidelines and the PSR. W e are satisfied that any constitutional Booker error

at Bailey’s sentencing was harmless beyond a reasonable doubt.

                                  III. Conclusion

      W e enforce Bailey’s waiver of appellate rights as to his arguments that the

district court misapplied the guidelines and the evidence was insufficient to

support the enhancements to his sentence. Thus, we DISM ISS his appeal as to

those arguments. W e further conclude Bailey did not waive his right to challenge

his sentence under Booker. Nonetheless, we find the Booker error at sentencing

w as harm less. B ailey’s sentence is AFFIRMED.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge



                                        -19-
