                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                       February 2, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 05-7018
v.                                             (Eastern District of Oklahoma)
                                                 (D.C. No. CR-04-42-WH)
CLIFTON L. TIDWELL,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.



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

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

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore,

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
I. Introduction

      Appellant Clifton Tidwell pleaded guilty to possession of child

pornography. The United States District Court for the Eastern District of

Oklahoma sentenced him to twenty-seven months’ imprisonment, based in part on

a two-level enhancement for possession of material involving a prepubescent

minor or a minor under the age of twelve years and a two-level enhancement for

possession of at least ten images, but fewer than 150 images. Tidwell objected to

the facts contained in the Presentence Investigation Report (“PSR”) that were

used to support the enhancements. The district court overruled the objection and

relied solely on the facts stated in the PSR in applying the enhancement for the

age of the children depicted in the images. Tidwell appealed. We exercise

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

district court failed to find the facts necessary to support the enhancement

regarding the children’s ages by a preponderance of the evidence when those facts

were contested by Tidwell, we reverse and remand for resentencing.

II. Background

      Tidwell was charged in a two-count indictment with transportation of child

pornography in violation of 18 U.S.C. § 2252A(a)(1) (Count One) and possession

of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Two). In

accordance with an oral plea agreement, Tidwell pleaded guilty to Count Two and


                                         -2-
the government dismissed Count One. Count Two of the indictment alleged,

“[f]rom about April 30, 2003, until about February 19, 2004, Tahlequah,

Oklahoma, in the Eastern District of Oklahoma, and elsewhere, Clifton L.

Tidwell, defendant herein, did knowingly possess a computer system containing at

least 12 computer images of child pornography and at least five video movies of

child pornography . . . .” During the plea colloquy in district court, Tidwell

provided the following factual basis for his guilty plea: “Before February 2004 in

Cherokee County, which is in the Eastern District of Oklahoma, I possessed a

computer that contained images of child pornography which I had downloaded

from the Internet. I understand by downloading the images from the Internet they

affected interstate commerce.” The district court inquired whether Tidwell

knowingly possessed the computer disk, and Tidwell replied that he did.

      Prior to sentencing, the probation officer prepared a PSR applying the 2003

edition of the United States Sentencing Guidelines Manual (“USSG” or

“Guidelines”). Pursuant to USSG § 2G2.4(a), Tidwell’s base offense level was

fifteen. The PSR recommended three, two-level enhancements for: (1) possession

of material involving a prepubescent minor or a minor under the age of twelve

years pursuant to USSG § 2G2.4(b)(1); (2) possession of material resulting from

defendant’s use of a computer pursuant to USSG § 2G2.4(b)(3); and (3)

possession of at least ten images, but fewer than 150 images pursuant to USSG §


                                         -3-
2G2.4(b)(5)(A). The enhancement for the age of the children depicted in the

pornographic materials was based on a statement by Tidwell to an FBI agent that,

in his opinion, the children pictured were between the ages of six and sixteen.

The enhancement for the number of images was based on the twelve images of

child pornography found in Tidwell’s Yahoo! online folder when his computer

was seized by the FBI and the language of the indictment. The PSR also

recommended a three-level downward adjustment for acceptance of responsibility,

bringing Tidwell’s total offense level to eighteen. Tidwell was assigned a

criminal history category of I, resulting in a Guidelines range of twenty-seven to

thirty-three months’ imprisonment.

      Tidwell filed written objections to the PSR based on Blakely v. Washington,

542 U.S. 296 (2004). Specifically, Tidwell asserted the enhancements based on

the age of the children depicted in the pornographic materials and the number of

images violated Blakely because they were based upon facts not charged in the

indictment or admitted by him. At the sentencing hearing, which took place after

the Supreme Court issued its opinion in United States v. Booker, Tidwell again

objected to the enhancements under USSG §§ 2G2.4(b)(1) and (b)(5)(A). 125 S.

Ct. 738 (2005). Defense counsel stated:

      [T]he factual basis that [Tidwell] provided [in his guilty plea] . . . did
      not provide some of the enhancements that were considered in the
      guideline computation in the presentence report, and we object to
      those being considered in as much as there’s never been a jury

                                          -4-
      finding or a statement by the defendant admitting those. And I think
      that is something that was addressed by Booker and Fanfan . . . that
      unless there’s been a jury finding or an admission by the defendant to
      certain sentencing factors that they should not be considered in the
      computation of the guidelines even though the guidelines are
      ultimately advisory before the Court. I think that it’s important for
      Mr. Tidwell to have the Court make a finding as to exactly what the
      basis is . . . .

      The government offered to provide the district court with copies of the

pornographic materials Tidwell possessed so the court could make findings

regarding the enhancements. The district court declined, stating “that’s why I

have a probation officer so I don’t have to do that.” The district court

subsequently overruled Tidwell’s objection and found that “the presentence report

forms the factual basis for the sentence today.” The district court adopted the

Guidelines application in the PSR and sentenced Tidwell to twenty-seven months’

imprisonment.

III. Discussion

      Tidwell challenges his sentence on the ground that the district court erred

in relying on contested facts contained in the PSR to support the sentencing

enhancements instead of requiring the government to prove the contested facts by

a preponderance of the evidence. Although Tidwell framed his objection to the

enhancements as a Booker challenge, this case actually involves general

sentencing error, not Booker error, because the district court applied the

Guidelines as advisory only.

                                         -5-
      The government bears the burden of proving sentencing enhancements.

United States v. Yarnell, 129 F.3d 1127, 1136 (10th Cir. 1997). At sentencing,

the district court may rely on facts stated in the PSR to support an enhancement

unless those facts are objected to by the defendant. 1 United States v. Keifer, 198

F.3d 798, 800 (10th Cir. 1999). When a defendant objects to a fact in the PSR,

the government must prove that fact at the sentencing hearing by a preponderance

of the evidence. Id. “[A] district court may not satisfy its obligation [to find

contested facts supporting a sentencing enhancement] by simply adopting the

presentence report as its finding.” United States v. Farnsworth, 92 F.3d 1001,

1011 (10th Cir. 1996).

      After reviewing the record, including the transcript of the sentencing

hearing, we conclude Tidwell’s objection contested the facts contained in the PSR

and used to support the enhancements. Specifically, Tidwell argued he had not

admitted facts regarding the ages of the children depicted in the pornographic

materials or the number of images he possessed in his plea colloquy before the

district court. Tidwell did, however, admit the facts necessary to support the

enhancement for the number of images possessed. Count Two of the indictment,


      1
        In United States v. Bass, we held a defendant’s failure to object to a fact in
the PSR does not operate as an admission of that fact “for purposes of the rights
announced in Booker.” 411 F.3d 1198, 1204 n.7 (10th Cir. 2005). Because this
case does not involve Booker error and we conclude Tidwell properly objected to
the relevant facts in the PSR, Bass is not applicable.

                                         -6-
to which Tidwell pleaded guilty, alleged Tidwell “knowingly possess[ed] a

computer system containing at least 12 computer images of child pornography.”

Tidwell’s guilty plea is sufficient to support the district court’s application of the

two-level enhancement for possession of more than ten images, but fewer than

150 images. See United States v. Hill, 53 F.3d 1151, 1155 (10th Cir. 1995) (en

banc) (holding that a defendant who pleads guilty admits all the well-pleaded

facts in the indictment).

      The ages of the children depicted in the images, however, was neither

alleged in the indictment, nor discussed by Tidwell in the plea colloquy. The

facts supporting the enhancement regarding the children’s ages came solely from

the PSR. Because Tidwell objected to the facts in the PSR supporting this

enhancement, the government was required to prove, and the district court was

required to find, those facts by a preponderance of the evidence before imposition

of the enhancement. See Keifer, 198 F.3d at 800. Although the government

offered to produce the images possessed by Tidwell to support the enhancement,

the district court instead chose to rely solely on the facts as stated in the PSR. In

merely adopting the contested facts contained in the PSR to support the

enhancements, the district court erred. See Farnsworth, 92 F.3d at 1011.

      Tidwell argues the government should be prevented from presenting the

pornographic materials to support the enhancement on remand because the


                                          -7-
government acknowledged it routinely tries to avoid putting such materials into

evidence, presumably to protect the victims. When a case is remanded for

resentencing, however, the district court must begin anew with de novo

proceedings. United States v. Moore, 83 F.3d 1231, 1234 (10th Cir. 1996). The

district court is permitted to receive “any relevant evidence the court could have

heard at the first sentencing hearing.” Id. (quotation omitted). Therefore, the

government is entitled to present the pornographic materials possessed by Tidwell

at resentencing.

IV. Conclusion

      For the foregoing reasons, we REVERSE and REMAND for resentencing.

                                               ENTERED FOR THE COURT



                                               Michael R. Murphy
                                               Circuit Judge




                                         -8-
