                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       October 25, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,
                 Plaintiff - Appellee,                  No. 04-6316
 v.                                               (D.C. No. CR-04-48-R)
 ROBERT McCLEARY,                                       (W.D. Okla.)
                 Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      In October 2000, agents from the Federal Bureau of Investigation learned

of a bank fraud scheme involving Defendant and a number of other alleged co-

conspirators. The conspiracy involved a check kiting operation where worthless


      *
       This order and judgment is not binding precedent, except under the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.
checks were deposited into newly opened accounts for the purpose of artificially

inflating account balances. Defendant was charged in a three-count indictment

for bank fraud in violation of 18 U.S.C. § 1344(1). Pursuant to a plea agreement,

Defendant pled guilty to one count in exchange for the dismissal of the remaining

counts.

      At sentencing, the presentence report recommended that the district court

apply a two-level sentencing enhancement under § 2F1.1(b)(2)(A) of the United

States Sentencing Guidelines Manual (“Guidelines”) because Defendant allegedly

participated in more than minimal planning of the conspiracy. The presentence

report recommended an additional three-point sentencing enhancement under §

3B1.1(b) of the Guidelines for Defendant’s alleged leadership role in the

conspiracy. Defendant objected to the district court’s application of §

2F1.1(b)(2)(A) and § 3B1.1(b) arguing that the enhancement violated his Sixth

Amendment rights as articulated in Blakely v. Washington, 542 U.S. 296 (2004).

Rec., Vol. 1, at 1-5. The district court overruled Defendant’s objection and

sentenced Defendant to twelve months’ incarceration–the low end of the

Guidelines range. Anticipating that, in the wake of Blakely, the Guidelines might

be declared unconstitutional, the district court indicated that it would impose the

same twelve-month sentence were it not bound by the Guidelines. Supp. Rec.,

Vol. 1, Sent. Tr. at 25.


                                         -2-
      On appeal, Defendant argues that his sentence violated his constitutional

rights as recently articulated by the Supreme Court in United States v. Booker,

__U.S.__, 125 S. Ct. 738 (2005). In Booker, the Supreme Court announced that

types of errors can occur when a defendant is sentenced pursuant to the then-

mandatory Guidelines: constitutional error and non-constitutional error. United

States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005). Constitutional

error occurs when a judge makes a finding of fact (other than a fact of prior

conviction) that increases a defendant’s sentence beyond the maximum authorized

by either a guilty plea or the jury’s verdict. Id. at 731. Non-constitutional error

is present in most pre-Booker cases and results from the district court’s mandatory

application of the Guidelines. Booker,__U.S.__, 125 S. Ct at 764. (severing 18

U.S.C. § 3553(b)(1)).

      Here, Defendant claims that the district court committed constitutional

error when it found facts, beyond the terms of the plea agreement, that related to

sentencing enhancements under the Guidelines. Because Defendant made a

Blakely objection to the district court at sentencing, he preserved his Booker

argument for this appeal. See United States v. Labastida-Segura, 396 F.3d 1140,

1142-43 (10th Cir. 2005) (noting that a Blakely objection is sufficient to preserve

a challenge of Booker error). We apply a harmless error standard of review to

cases involving constitutional error. Id.


                                            -3-
      Federal Rule of Criminal Procedure 52(a) outlines the harmless error

standard, providing that “[a]ny error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.” The Supreme Court has directed

courts of appeals to remand cases for resentencing when the district court has

misapplied the Guidelines unless the court of appeals concludes that the district

court’s selection of the sentence was not affected by the error, i.e., that the error

was harmless. United States v. Riccardi, 405 F.3d 852, 875 (10th Cir. 2005)

(citing Williams v. United States, 503 U.S. 193, 203 (1992)). The government

must also demonstrate that the error did not affect Defendant’s substantial rights.

Williams, 503 U.S. at 203. In cases of constitutional error, like the instant case,

the “beneficiary of the error”–the government in this case–must prove that the

error was harmless beyond a reasonable doubt. See Chapman v. California, 386

U.S. 18, 24 (1967).

      In Labastida-Segura, we held that a sentence at the bottom of the

Guidelines range demonstrates that the error is not harmless and warrants an

automatic remand for resentencing. 396 F.3d at 1143. The district court’s

twelve-month sentence under the then-mandatory Guidelines regime, at the low

end of the Guidelines range, is, therefore, not harmless. But that does not end our

inquiry because the district court in this case provided an alternate sentence.




                                          -4-
      In United States v. Serrano-Dominiguez, 1 we affirmed the district court’s

alternate sentence which was identical to the unconstitutional Guidelines sentence

that the district court had also imposed. 406 F.3d 1221, 1224 (10th Cir. 2005).

Defendant’s case is analogous to Serrano-Dominiguez. The district court here

stated unequivocally that it would impose the same sentence even if it were not

bound by the Guidelines. It therefore imposed identical alternative sentences–one

under the Guidelines and the other in case the Guidelines were held to be

unconstitutional. Supp. Rec., Vol. 1, Sent. Tr. at 25. Because of the district

court’s remarkable prescience, “we do not need to read any tea leaves to

determine what the district court would do on remand.” Serrano-Dominguez, 406

F.3d at 1223. A remand would be futile. See id. at 1224 (“[A] remand would

needlessly burden the district court and counsel with another sentencing

proceeding, which we know would produce the same result.”). 2 Additionally, the

alternative sentence imposed by the district court was well below the statutory

maximum of thirty years, and overall, we find it to be reasonable. See

      1
       While Serrano-Dominguez dealt with non-constitutional Booker error
instead of the type of constitutional Booker error at issue in this case, the effect
would be the same for either error; thus, the distinction is trivial.
      2
       We do not reach Defendant’s ex post facto clause argument since we are
not remanding the case. Aplt. Br. at 22 ( “[T]he district court on remand may
sentence anywhere below the applicable Guideline range, but not above that range
based on the remedy fashioned by Justice Breyer’s opinion.” (emphasis in
original)). Because we affirm the district court’s sentence on other grounds, we
will not address this argument.

                                          -5-
Booker,__U.S.__, 125 S. Ct. at 766-67.

      AFFIRMED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




                                         -6-
