                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      February 15, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-6357
 v.                                               (D.C. No. 03-CR-06-M)
                                                       (W.D. Okla.)
 ABBEY RENEA CHILDRESS,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant Abbey Renea Childress appeals from the sentence

imposed following her plea of guilty to one count of being an unlawful user of a

controlled substance while in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(3) (count 1) and one count of knowingly and intentionally using a

telephone in committing or facilitating distribution of methamphetamine, in

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
violation of 21 U.S.C. § 843(b) (count 2). Ms. Childress argues that the district

court (1) attributed unproven drug and firearm quantities to her without explicit

findings or evidence, (2) violated her Sixth Amendment rights under United

States v. Booker, 543 U.S. 220, by enhancing her sentence with unproven facts,

(3) committed “non-constitutional” Booker error by applying the Sentencing

Guidelines (“Guidelines”) in a mandatory fashion, and (4) should be directed to

re-sentence her using only those facts admitted in the plea agreement. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

we affirm.

      The parties are familiar with the facts and we need not restate many of

them here. Pursuant to a plea agreement, Ms. Childress pled guilty on February 9,

2004. A presentence report (PSR) was prepared, and Ms. Childress raised no

objection to the findings therein including drug and firearms quantities. The PSR

determined that the offenses would be grouped, with the offense level utilized for

the most serious of the counts. U.S.S.G. § 3D1.3(a). Included in the total offense

level for count 1 was a three-level enhancement for an offense involving 8-12

firearms and a four-level enhancement for possession of a firearm in connection

with a felony offense. Both counts produced an offense level of 40, which

included a two-level enhancement for possession of a dangerous weapon.

U.S.S.G. § 2D1.1(b)(1). From that, a two-level reduction for acceptance of


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responsibility was deducted, resulting in a total offense level of 38. With a

criminal history category of III, the guideline range was 292-365 months, but the

statutory maximum for count 1 was 120 months, and 48 months for count 2. The

district court sentenced Ms. Childress to the statutory maximums, and ran the

sentences consecutively for a total of 168 months. Additionally, the sentence

included three years supervised release on count 1, one year on count 2, the

supervised release terms running concurrently.

      We review legal challenges to the Sentencing Guidelines and their

application de novo; factual findings by the district court are reviewed for clear

error. United States v. Pentrack, 428 F.3d 986, 989 (10th Cir. 2005). The

unobjected-to factual findings in the PSR provide an adequate basis for the drug

and firearm quantities. See Fed. R. Crim. P. 32(i)(3)(A) (court “may accept any

undisputed portion of the presentence report as a finding of fact”); United States

v. Wolfe, __ F.3d __ , 2006 WL 226019 at *6-7 (10th Cir. January 31, 2006).

Accordingly, we reject the contention that an insufficient factual basis exists for

these amounts.

      Turning to Ms. Childress’s remaining challenges, we recognize two types

of Booker errors: constitutional and non-constitutional. United States v.

Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir. 2005). A constitutional Booker

error may arise when a court “[relies] upon judge-found facts, other than those of


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prior convictions, to enhance a defendant's sentence mandatorily.” Id. A

non-constitutional error may occur when a sentencing court “appl[ies] the

Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even

though the resulting sentence was calculated solely upon facts that were admitted

by the defendant, found by the jury, or based upon the fact of a prior conviction.”

Id. at 731-32.

      We review the remaining challenges raised by Ms. Childress for plain error

given the lack of objection at the time of sentencing. Sent. Tr. at 2-3; Gonzales-

Huerta, 403 F.3d at 732; United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir.

2005) (en banc) (objection on sufficiency is inadequate to preserve Booker error);

see also Aplt. Br. at 7. To notice such error, we must find (1) error; (2) that is

plain; (3) that affects substantial rights; and, if these elements are met, we look to

whether (4) the error seriously affects the fairness, integrity, or public reputation

of the judicial proceedings. United States v. Visinaiz, 428 F.3d 1300, 1308 (10th

Cir. 2005). Ms. Childress bears the burden to demonstrate that the alleged error

in sentencing affected her substantial rights. Gonzalez-Huerta, 403 F.3d at 736.

“[A] generalized assertion of error anchored solely to a Sixth Amendment

violation or mandatory application of the Guidelines” is insufficient to prove

plain error. United States v. Dowlin, 408 F.3d 647, 671-72 (10th Cir. 2005).

Because judge-found facts served as the basis for the offense level, the first two


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prongs of the plain error test are satisfied. United States v. Clifton, 406 F.3d

1173, 1181 (10th Cir. 2005).

      We agree with the government that Ms. Childress cannot satisfy the third

prong of the plain error test under her claims of constitutional and non-

constitutional Booker error. Ms. Childress was sentenced in accordance with the

statutory maximum, well below the guidelines range. Although Ms. Childress

contends on appeal that she “could have provided direct testimony and other

evidence regarding any imputation as to drug quantities and firearms alleged to

have been present,” Aplt. Br. at 12, that is too little to go on. The court gave her

every opportunity to present mitigating evidence. Sent. Tr. at 3-4. Specific facts

in the record on appeal must indicate a reasonable probability that the in a post-

Booker framework, Ms. Childress would have received a more lenient sentence.

United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005). Given the

vast difference between the guideline range and the more lenient statutory

maximum, Ms. Childress has not made this showing for either constitutional or

non-constitutional Booker error.

      Nor can she meet the fourth prong. We have developed a number of factors

that might satisfy the fourth prong: (1) a sentence increased substantially based on

Booker error; (2) a showing that the district court would likely impose a

significantly lighter sentence on remand; (3) a substantial lack of evidence to


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support the entire sentence the guidelines required the court to impose; (4) a

showing that objective consideration of the 18 U.S.C. § 3553(a) factors warrants a

departure from the suggested guidelines sentence, and (5) other evidence peculiar

to the defendant which demonstrates a complete breakdown in the sentencing

process. Dowlin, 408 F.3d at 671. None of these factors are present.

      Ms. Childress’ argument that the court’s failure to provide and “reference,

computation or basis” for the sentence was clear error, Aplt. Br. at 7, 14, is

unpersuasive. “[I]t [is] quite clear that the sentencing court is not required to

consider individually each factor listed in § 3553(a) before issuing a sentence.

Moreover, we do not demand that the district court recite any magic words to

show that it fulfilled its responsibility to be mindful of the factors that Congress

has instructed it to consider.” United States v. Rines, 419 F.3d 1104, 1107 (10th

Cir. 2005) (quoting United States v. Contreras-Martinez, 409 F.3d 1236, 1242

(10th Cir. 2005)).

      Because we affirm the district court’s sentence, we need not address Ms.

Childress’s argument for particular instructions on remand, nor consider any

issues concerning the scope of the waiver of appellate rights in the plea

agreement, or its efficacy.

      AFFIRMED. All pending motions are DENIED.


                                        Entered for the Court

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Paul J. Kelly, Jr.
Circuit Judge




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