                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         June 29, 2005
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-8059
          v.                                           (D. Wyoming)
 TOBIN LEE MCGUFFIN,                                  (03-CR-113-D)

               Defendant-Appellant.




                            ORDER AND JUDGMENT          *




Before HENRY, McKAY , and HARTZ , Circuit Judges.



      After a heated brawl with his girlfriend, Tobin Lee McGuffin was charged

in Teton County, Wyoming district court with aggravated assault, kidnaping,

battery, and property destruction. He pleaded guilty to the aggravated assault

charge in exchange for the state’s dismissal of the other counts. He was

sentenced to three to ten years’ imprisonment and received a $1,010 fine.




      *
        This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
      As a result of the foregoing events, Mr. McGuffin was subsequently

indicted in federal district court with being a fugitive in possession of firearms,

(count 1) and ammunition (count 2), both in violation of 28 U.S.C. §§ 922(g)(2).

Mr. McGuffin pleaded guilty to each count, and he was sentenced to 44 months of

imprisonment on each count (to be served concurrently), three years of supervised

release, and a $500 fine.

      Mr. McGuffin challenges the testimony presented at his sentencing hearing,

alleging violations of the Confrontation Clause. Mr. McGuffin also brings a

Blakey/Booker challenge to his sentence, contending the district court plainly

violated his Sixth Amendment rights when it found, by a preponderance of the

evidence, that the facts supported a cross-reference to the underlying crime of

kidnaping. Mr. McGuffin argues he was improperly sentenced because the

sentencing range for his indicted offense was 12-18 months and he was sentenced

to 44 months based on the cross-reference. For the reasons stated below, we

affirm Mr. McGuffin’s conviction and sentence.

                                 I. BACKGROUND

      Several facts regarding the underlying altercation remain in dispute. Ms.

Cynthia Anderson had been living with Mr. McGuffin, whom she knew as Cody

Grey, for approximately a year, when she became concerned with his increasingly

violent and abusive temper. On October 26, 2002, she apparently hid Mr.


                                          -2-
McGuffin’s pain medication because she believed the medication exacerbated his

outbreaks. Mr. McGuffin, annoyed about a wiring malfunction in his truck,

announced he was leaving in Ms. Anderson’s truck when she refused to give him

the medication. She told him she did not want him to drive her truck and his

anger increased. She apparently muttered “No wonder his wife killed herself,”

not realizing Mr. McGuffin overheard her. Aple’s Br. ex. 1, at 2 (No. 02105-

2273, Victim Impact Statement). At this point, Mr. McGuffin was incensed.

      Mr. McGuffin exclaimed “I’ll show you, you mother-f---er. I’ll kill you,”

and retrieved his rifle and revolver from his truck. Aple’s Br. ex 2, at 2 (Jackson

County Sheriff’s Office Rep’t). Ms. Anderson retreated inside and called the

police. She locked the door, which Mr. McGuffin proceeded to kick in.

      Once inside, Mr. McGuffin pointed the revolver at Ms. Anderson and stated

“you’re going to die today” and pulled the trigger several times. Id. Ms.

Anderson believed the gun to be loaded. Mr. McGuffin pointed the gun at his

head, and stated “I’m going to kill myself– I have nothing to live for” and pulled

the trigger several times. Id.

      Ms. Anderson tried to escape, but Mr. McGuffin grabbed her and locked

the door. He told her that they were going to play Russian Roulette and that he

had loaded two rounds into the revolver. While pushing the weapon into her head

he stated his intent to kill Ms. Anderson and then himself, and he proceeded to


                                         -3-
pull the trigger several times. This behavior apparently preceded a second call to

911. He then pointed the revolver at himself and pulled the trigger several times.

Ms. Anderson ran into the kitchen, was knocked down by Mr. McGuffin, and ran

back into the living room. At about this point, deputies entered the house after

hearing screams and the clicking sound of the revolver. The revolver was found

in a kitchen drawer, and six .44 magnum cartridges were found in Mr. McGuffin’s

trouser pockets. Deputies found a Browning .338 caliber rifle with two rounds in

the magazine on the front porch.

      According to Mr. McGuffin’s version of events, he was angered by a

statement from Ms. Anderson about his late wife’s having killed herself because

of him. Mr. McGuffin stated his wife and son were killed by a drunk driver. He

admitted retrieving the guns, because Ms. Anderson had approached his truck and

began to throw other items out of it. Concerned the guns might go off, he

grabbed them, and Ms. Anderson went into the house and locked the door.

      Mr. McGuffin kicked in the door and emptied the revolver of its bullets, all

the time in plain view of Ms. Anderson. Although he did not recall pointing the

revolver at her, he did remember pulling the trigger numerous times to show that

it was unloaded. Mr. McGuffin denies shoving, pushing, or grabbing Ms.

Anderson, but he admitted he “gently” pushed her into a chair so they could talk

things out. Id. at 3. He recalls Ms. Anderson threw a telephone at him, which he


                                         -4-
then threw to the floor. He also claims that he called 911 the second time. Mr.

McGuffin admitted he placed the revolver in the kitchen drawer for safekeeping.

      Mr. McGuffin was charged with aggravated assault, kidnaping, battery, and

property destruction in Teton County District Court. He pleaded guilty to

aggravated assault and was sentenced to three to ten years.

      In federal court, Mr. McGuffin was subsequently indicted for violations of

(1) 18 U.S.C. §§ 922(g)(2) and 924(a)(2), as a fugitive in possession of a firearm,

and (2) 18 U.S.C. §§ 922(g)(2) and 924(a)(2), as a fugitive in possession of

ammunition. Mr. McGuffin pleaded guilty to both counts.

      The Probation Officer prepared a presentence report (“PSR”) reflecting that

United States Sentencing Guidelines Manual § 2K2.1(c) indicates that if a

defendant uses or possesses any firearm or ammunition in connection with the

commission or attempted commission of another offense, it is appropriate to apply

§ 2X1.1 with respect to the other offense, if the resulting offense level is greater

than that provided by § 2K2.1, which provided an offense level of 12.

      The Probation Officer determined the proper cross-reference for the

underlying violations to be § 2A4.1 of the Guidelines, which provides a

sentencing range for the underlying offense conduct of kidnaping. Mr. McGuffin

objected to the cross-reference.

      Under Wyoming law:



                                          -5-
            (a) A person is guilty of kidnapping if he unlawfully removes
      another from his place of residence or business or from the vicinity
      where he was at the time of the removal, or if he unlawfully confines
      another person, with the intent to:

             (i) Hold for ransom or reward, or as a shield or hostage;

                    (ii) Facilitate the commission of a felony; or

                   (iii) Inflict bodily injury on or to terrorize the victim
             or another.

             (b) A removal or confinement is unlawful if it is accomplished:

                    (i) By Force, threat, or deception . . .

Rec. vol. IV, Addendum to PSR (quoting W YO . S TAT . § 6-2-201) (emphasis added

by probation officer). The probation officer noted that a conviction regarding the

underlying conduct is not necessary for a district court to use the guideline

provision under § 2X1.1. According to the PSR, Mr. McGuffin’s offense conduct

met the elements of kidnaping under Wyoming law. Adopting this

recommendation, Mr. McGuffin’s offense level would be 24.

      In his sentencing memorandum, Mr. McGuffin requested a sentence with a

cross-reference to § 2A2.2 (aggravated assault). In contrast to kidnaping, a

person is guilty of aggravated assault if he or she:

             (i) Causes serious bodily injury to another intentionally,
             knowingly or recklessly under circumstances
             manifesting extreme indifference to the value of human
             life;




                                           -6-
             (ii) Attempts to cause, or intentionally or knowingly
             causes bodily injury to another with a deadly weapon;

             (iii) Threatens to use a drawn deadly weapon on another
             unless reasonably necessary in defense of his person,
             property or abode or to prevent serious bodily injury to
             another; . . . .

W Y . S TAT . § 6-2-502. If the court had applied § 2A2.2, Mr. McGuffin’s total

offense level would have been 15, with a criminal history category of II, placing

him in a sentencing range of 21-27 months.

      At the sentencing hearing, Special Agent Jay Johnson testified over

objection that he had spoken with Ms. Anderson and that the victim impact

statement from the state conviction came from her. The victim impact statement

was introduced as evidence, over Mr. McGuffin’s objection. Agent Johnson

testified that his conversation with Ms. Anderson was consistent with the

statement.

      Mr. McGuffin’s counsel challenged the agent’s testimony, contending it

was hearsay and a violation of the Confrontation Clause. The district court

rejected this challenge, stating that if Mr. McGuffin “wanted a trial and wanted

due process of law, he could have taken his case to a jury [where] [h]e could have

confronted all the witnesses against him.” Rec. vol. III, at 18.

      Mr. McGuffin’s counsel informed the court he would like Mr. McGuffin to

present his version of events in a forum where he would not be under oath and not



                                         -7-
subject to cross-examination. Counsel emphasized that Ms. Anderson’s victim

impact statement was similarly unsworn and was not subject to cross-examination.

The court allowed Mr. McGuffin ten minutes to provide his version of events

from the podium, without being sworn in and thus without being cross-examined.

         Mr. McGuffin then reiterated his version of events, stressing that Ms.

Anderson knew the gun was unloaded, that he left no marks on her, and that he

was trying to “get [his] stuff and get away from there” and that he did “scare her”

during the process. Id. at 36.

         The district court noted that the Federal Rules of Evidence do not apply

during a sentencing hearing. In its adoption of the PSR’s recommendations, the

court observed that the government’s evidence was “compelling” and that Agent

Johnson’s testimony “corrobor[ated] the matters contained in the report.” Id. at

47-48.

         The district court adopted the PSR, and sentenced Mr. McGuffin using §

2A4.1, which carried an offense level of 24. The court added two levels for the

use of a dangerous weapon, USSG § 2A4.1(b)(3), and subtracted three levels for

Mr. McGuffin’s acceptance of responsibility under § 3E1.1(a) and (b). His

resulting offense level was thus 23, with a criminal history category of II. The

applicable sentencing guideline imprisonment range was 51-63 months. The court

sentenced Mr. McGuffin to 63 months, and gave him credit for the nineteen



                                           -8-
months he had served on the state court conviction, resulting in a total sentence of

44 months.


                                 II. DISCUSSION

      A. Confrontation Clause

      Mr. McGuffin challenges the testimony presented in support of the

prosecution at the sentencing hearing. He is primarily concerned about the

testimony from an officer relaying Ms. Anderson’s account of the assault, which

was encapsulated in the Victim Impact Statement from the state court

proceedings. In denying Mr. McGuffin’s objections, the district court noted that

hearsay and Confrontation Clause objections were inappropriate during

sentencing proceedings. In addition, the court found the evidence of the

underlying crimes (assault and kidnaping) to be credible, and thus, pursuant to §

2K2.1(c)(1)’s cross-reference to the kidnaping guidelines, sentenced Mr.

McGuffin under § 2A4.1 (Kidnaping, Abduction, Unlawful Restraint).

      When a defendant contends that a district court ruling violated his rights

under the Confrontation Clause, we review de novo whether an error occurred

and, if so, whether the error was harmless beyond a reasonable doubt. United

States v. Joe, 8 F.3d 1488, 1497 (10th Cir. 1993) (quoting Chapman v. California,

386 U.S. 18, 24 (1967)).




                                         -9-
      The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. C ONST . amend. VI. Clearly, this “constitutional safeguard” is

“directed at ensuring the fairness of criminal proceedings by defining the

situations in which confrontation by cross-examination must be afforded a

defendant.” United States v. Fatico, 579 F.2d 707, 714 (2d Cir. 1978).

      Mr. McGuffin argues that in the wake of Crawford v. Washington, 541 U.S.

36 (2004), his rights under the Confrontation Clause are revived at sentencing.

Our pre-Crawford caselaw holds that the Confrontation Clause does not apply at

non-capital sentencing proceedings under the Sentencing Guidelines. See United

States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir. 1990) (“[T]he Guidelines were

not intended to place new restrictions on the sources of information available to

the sentencing judge.”) (emphasis omitted). In fact, the Guidelines allow a

sentencing court to consider all relevant information “without regard to its

admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.”

USSG § 6A1.3(a); see 18 U.S.C. § 3661; see also United States v. Higgs, 353

F.3d 281, 324 (4th Cir. 2003) (noting that “it even now remains unclear whether

the Confrontation Clause applies” to capital sentencing proceedings).




                                         -10-
      In Crawford, the State offered a taped police interview of a woman whose

husband was on trial for stabbing a man whom the husband claimed tried to rape

his wife. Crawford, 541 U.S. at 38. The trial court allowed the tape into

evidence, finding that the wife’s inculpating testimony met the requirement that

the statements bear an “adequate ‘indicia of reliability’” under Ohio v. Roberts,

448 U.S. 56 (1980), because they bore a particularized guarantee of

trustworthiness. Id. at 38, 40, 41.

      Prior to Crawford, a district court could admit hearsay evidence against a

criminal defendant whenever the declarant was “unavailable” and the evidence

had “adequate ‘indicia of reliability,’” because it fell within a “firmly rooted

hearsay exception” or bore “particularized guarantees of trustworthiness.”

Roberts, 448 U.S. at 66. Crawford, however, symbolized a “fundamental shift” in

the Court’s Confrontation Clause jurisprudence. United States v. Solomon, 399

F.3d 1231, 1237 n.2 (10th Cir. 2005) (citing Crawford, 541 U.S. at 51). The

Court held that the Confrontation Clause prohibits testimonial out-of-court

statements unless the declarant is shown to be unavailable and the defendant had

an earlier opportunity to cross-examine the declarant. 541 U.S. at 51-52.

Testimonial hearsay includes “custodial examinations” and “[s]tatements taken by

police officers in the course of interrogations.” Id. at 52, 63 (noting that the

Roberts approach to testimonial evidence demonstrated an “unpardonable . . .



                                          -11-
capacity to admit core testimonial statements that the Confrontation Clause

plainly meant to exclude”).

      Although it is clear that the analytical approach announced in Crawford is a

departure from Roberts and its progeny, and that Crawford overruled Roberts’s

standards for analyzing a Confrontation Clause claim when testimonial evidence

is involved, there is no indication that the Supreme Court was focusing on the

application of the Clause at sentencing. Here, Agent Johnson testified at

sentencing that Ms. Anderson’s victim impact statement from the state court

proceeding was consistent with his interview of her. The agent had reviewed the

police reports from the assault and had spoken to Ms. Anderson. Ms. Anderson’s

statements were never cross-examined because Mr. McGuffin pleaded guilty to

the state charge. As a partial solace, Mr. McGuffin presented his story from the

podium, during which time he was not under oath or cross-examined. We

therefore reject Mr. McGuffin’s argument that there was any violation of his

Confrontation Clause rights.



      B. Booker error

      Under the Supreme Court’s holding in United States v. Booker, 125 S. Ct.

738 (2005), if a judge finds facts by a preponderance of the evidence that increase

the defendant’s authorized sentence, a defendant may be entitled to remand. In



                                        -12-
United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) (en banc), we

explained the two types of error under Booker: constitutional and non-

constitutional. Mr. McGuffin argues that (1) the error here was structural, and (2)

the constitutional error here was plain. At oral argument, counsel acknowledge

that we have since rejected his structural error claim. See id. at 734. In its

briefing, the government insisted that any error was non-constitutional but

conceded at oral argument that the judge found facts that increased Mr.

McGuffin’s sentence beyond the maximum authorized by his guilty plea. This

amounted to constitutional error under Booker.

      Although Mr. McGuffin vigorously contested the facts underlying the

district court’s cross-reference to kidnaping, he raised this issue only in the

context of a Confrontation Clause argument. At oral argument, Mr. McGuffin’s

counsel admitted he neither couched his argument as a Sixth Amendment

challenge, nor as an Apprendi or Blakely claim. As such, we review his Booker

claim for plain error. See Booker, 125 S. Ct. at 769 (“[W]e expect reviewing

courts to apply ordinary prudential doctrines, determining, for example, whether

the issue was raised below and whether it fails the ‘plain-error’ test.”).

             1. 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



                                          -13-
public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732

(further quotation omitted); United States v. Olano, 507 U.S. 725, 732 (1993).

“We conduct this analysis ‘less rigidly when reviewing a potential constitutional

error.’” United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005) (quoting

United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001)).

             2. The error did not affect Mr. McGuffin’s substantial rights or
             seriously affect the fairness, integrity, or public reputation of the
             judicial proceedings.

      The government concedes that the first two prongs of the Olano test as to

Booker error are satisfied here. To satisfy Olano’s third prong, that the error

affected his substantial rights, “a defendant must show a ‘reasonable probability’

that the defects in his sentencing altered the result of the proceedings.” Dazey,

403 F.3d at 1175 (quoting United States v. Dominguez Benitez, 542 U.S. 74,

(2004)). We have held in the context of reviewing a constitutional Booker error

that a defendant may meet this burden in at least two ways:

      First, if the defendant shows a reasonable probability that a jury
      applying a reasonable doubt standard would not have found the same
      material facts that a judge found by a preponderance of the evidence,
      then the defendant successfully demonstrates that the error below
      affected his substantial rights. . . . Second, a defendant may show that
      the district court’s error affected his substantial rights by demonstrating
      a reasonable probability that, under the specific facts of his case as
      analyzed under the sentencing factors of 18 U.S.C. § 3553(a), the
      district court judge would reasonably impose a sentence outside the
      Guidelines range.




                                         -14-
Id. (emphasis added and footnote omitted). Mr. McGuffin contends that, given

the factual dispute over the cross-referenced guideline, we should remand because

the district court may well exercise its discretion to sentence him more leniently.

      The Wyoming statute defines kidnaping to include “unlawful[]

confine[ment] . . . with the intent to . . . [h]old for ransom or reward, or as a

shield or hostage;” or to “[i]nflict bodily injury on or to terrorize the victim or

another,” with the use of “[f]orce, threat, or deception.” W YO . S TAT . § 6-2-201.

As the facts here do not justify a finding of unlawful confinement with the intent

to hold for ransom or reward or as a shield or hostage, the district court must have

concluded, based upon Ms. Anderson’s version of the facts, that Mr. McGuffin

intended to “[i]nflict bodily injury on or to terrorize” her. Id.

      Although we recognize that the facts underlying the cross-reference are

contested, and we could conclude that a jury might not have found the same

material facts applying the reasonable doubt standard that the district court judge

found by a preponderance of the evidence, we need not reach this issue here.

      The record suggests that the sentence Mr. McGuffin might receive were we

to remand might be harsher than the forty-four months he actually received. At

sentencing, the district court observed

      “[T]he sentence that will be imposed on you by the Court will take into
      account what I believe to be a pretty horrific set of circumstances. . . .
      But for the grace of God your victim didn’t die; and, frankly, but for the



                                          -15-
       grace of God you’re not on death row[,] which could have happened
       here.

       I think the facts here are chilling and reflect a degree of lawlessness
       that requires the Court to take that into account . . . .

Rec. vol. III, at 55.

       Even if we were to assume Mr. McGuffin carries his burden of establishing

the first three prongs of the plain error test, we may exercise our discretion to

correct the error only if it “seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461,

469-70 (1997) (quoting Olano, 507 U.S. at 736). We have recently outlined five

factors to consider in making this decision:

       (a) a sentence increased substantially based on a Booker error,

       (b) a showing that the district court would likely impose a significantly

       lighter sentence on remand,

       (c) a substantial lack of evidence to support the entire sentence the

       Guidelines required the district court to impose,

       (d) a showing that objective consideration of the § 3553(a) factors warrants

       a departure from the sentence suggested by the Guidelines, and

       (e) other evidence peculiar to the defendant that demonstrates a complete

       breakdown in the sentencing process.




                                          -16-
United States v. Dowlin, 2005 W 1155882, *18 -19 (10th Cir. May 17, 2005). We

decline to exercise our discretion here.

      As to the increased sentence, we acknowledge that the difference between

the sentencing ranges is significant: had the district court cross-referenced to

aggravated assault Mr. McGuffin would have received at most 27 months, nearly

three years less than he received.

      Mr. McGuffin’s argument falters on the remaining factors, however. After

the district court determined Mr. McGuffin’s applicable Guidelines range was 51

to 63 months of imprisonment, it chose to sentence Mr. McGuffin to a 63-month

term (reduced for time served on the state charges). “In other words, the court

exercised its discretion and in doing so sentenced [Mr. McGuffin] to serve the

maximum term of imprisonment it could lawfully impose.” United States v.

Mozee, No. 04-8015, 2005 WL 958498, at *9 (10th Cir. Apr. 27, 2005).

      As a result, any argument that the court might have sentenced [him]
      to [fewer] months . . . had it understood it had discretion to do so is
      simply unpersuasive. Because the court decided to maximize
      punishment rather than exercise leniency where it had discretion,
      there is no basis for us to assume Mr. [McGuffin] would receive a
      lesser sentence if he were resentenced under a discretionary
      sentencing regime in which the district court is required to
      “consider” the guidelines when it exercises its discretion. See
      Booker, 125 S. Ct. at 764.

Id.




                                           -17-
      Although Mr. McGuffin disputes the evidence underlying the cross-

reference to kidnaping, we are not convinced there is a substantial lack of

evidence to support the district court. Similarly, our review of the § 3553(a)

factors and our review of the record do not suggest that the integrity of the

sentencing process was undermined. Finally, Mr. McGuffin points to nothing in

the record to indicate that this case represents a breakdown of the sentencing

process.

      Given the district court’s observations about the horrific nature of the

crime, and its decision to sentence at the top of the range, Mr. McGuffin has not

persuaded us that the Sixth Amendment error here seriously affects the fairness,

integrity, or public reputation of judicial proceedings. We therefore decline to

exercise our discretion to correct the forfeited error.

                                 III. CONCLUSION

      Mr. McGuffin is unable to establish that the Supreme Court in Crawford

intended to provided full Confrontation Clause rights at sentencing. He is also

unable to convince us that our failure to recognize plain error in this case would

seriously affect the fairness, integrity, or public reputation of judicial




                                          -18-
proceedings. Accordingly, we AFFIRM Mr. McGuffin’s conviction and sentence.



                             Entered for the Court



                             Robert H. Henry
                             Circuit Judge




                                    -19-
