                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         August 2, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 04-4213
                                                (D.C. No. 2:03-CR-1013-TC)
 VIRGIL TOM, also known as Virgil                        (D. Utah)
 Christopher Tom,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Virgil Tom appeals his sentence for unlawful possession of a firearm by a

convicted felon. 18 U.S.C. § 922(g). He argues that his sentence was imposed in

violation of United States v. Booker, 125 S.Ct. 738 (2005). Because any Booker

error was harmless, we AFFIRM Tom’s sentence.

      Tom’s base offense level was dictated by U.S.S.G. § 2K2.1(a)(4), which


      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
establishes a base offense level of 20 for a violation of § 922(g) if the defendant

has a previous felony conviction for either a crime of violence or a controlled

substance offense. In an Attachment for Sentencing, Tom argued below that

Blakely v. Washington, 124 S.Ct. 2531 (2004), forbade the court from using his

prior felony conviction to establish his base offense level. The sentencing court,

however, adopted a base offense level of 20, subtracted three levels for

acceptance of responsibility, and settled on an offense level of 17. Due to an

extensive history of violent and non-violent offenses, Tom faced a criminal

history category of VI, which, when combined with an offense level of 17,

established a Guidelines range of 51-63 months.

      Tom’s counsel advocated for a sentence at the low end of the range, citing

Tom’s status as a husband and father, his ongoing drug rehabilitation efforts, and

his thorough acceptance of responsibility. Complying with its plea agreement, the

government also asked for a sentence at the low end of the range. Despite the

uncontested request for a sentence of 51 months, the court sentenced Tom at the

top of the range to 63 months’ imprisonment. In support of its sentencing

decision the court stated: “I recognize, just looking through this report several

times, Mr. Tom is a very violent man. He’s done a lot of damage. And I think he

needs some time to, if he can, get his life together, to do it, and society needs

some time away from him.”


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      On appeal, Tom argues that his sentence violates Booker because he did not

admit that he had a prior conviction for a qualifying felony and thus the district

court increased his sentence based on a fact that it alone found, in contravention

of Tom’s Sixth Amendment rights. Tom’s argument founders on our recent

holding that “the ‘fact’ of prior convictions . . . need not be charged in an

indictment and proven to a jury.” United States v. Moore, 401 F.3d 1220, 1223

(10th Cir. 2005). A district court does not violate the Sixth Amendment when it

increases a defendant’s punishment based on a finding of a prior conviction.

      We have held, however, that a district court commits non-constitutional

Booker error “by applying the Guidelines in a mandatory fashion, as opposed to a

discretionary fashion, even though the resulting sentence was calculated

solely . . . upon the fact of a prior conviction.” United States v. Gonzalez-Huerta,

403 F.3d 727, 731-732 (10th Cir. 2005). Because Tom raised Blakely error

below, we review his sentence for harmless error. See United States v.

Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005). Under harmless error review,

“any error . . . that does not affect substantial rights must be disregarded.” Fed.

R. Crim. P. 52(a).

      The district court’s error in using the Guidelines in a mandatory fashion

does not violate Tom’s substantial rights. After receiving several arguments in

mitigation and a request for a sentence at the bottom of the range, and hearing no


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objection from the government, the court proceeded to sentence Tom at the very

top of the Guidelines range. The court cited as its reasons Tom’s violent criminal

history, his need for rehabilitation, and society’s need to be protected from him.

If anything, the record reveals that the mandatory nature of the Guidelines

constrained the court from imposing a higher sentence. It is clear that, had the

court operated as if the Guidelines were advisory only, Tom would not have

received a more lenient sentence. We therefore conclude that the non-

constitutional Booker error in this case is harmless. Accordingly, we AFFIRM

the sentencing order entered by the district court.



                                              ENTERED FOR THE COURT


                                              Carlos F. Lucero
                                              Circuit Judge




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