                                                            FILED
                                                 United States Court of Appeals
                    UNITED STATES CO URT O F APPEALS     Tenth Circuit

                                                                  September 6, 2007
                                 TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 06-8081
          v.                                            (D. W yoming)
 STEV EN TR UJILLO ,                              (D.C. No. 06-CR-131-ABJ)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TACH A, Chief Judge, BR ISC OE, and M U RPH Y, Circuit Judges.




      After examining the briefs and appellate record, this panel determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, on

June 6, 2007, this court entered an order directing that the matter be 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        This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I. Introduction

      Steven Trujillo pleaded guilty to one count of possession of a firearm in

furtherance of a drug trafficking crime and one count of interstate transportation

of stolen property. The Presentence Report (“PSR”) recommended a total offense

level of twenty-seven and a criminal history category of III, based in part on its

determination that Trujillo’s offense level should be calculated under USSG

§ 2B3.1. Trujillo objected to the application of § 2B3.1 and also raised a number

of other objections to the calculation of his total offense level and criminal

history score. The district court concluded § 2B3.1 applied and ultimately agreed

with the PSR recommendations as to Trujillo’s total offense level and criminal

history category. The court then sentenced Trujillo to seventy-seven months on

the count of interstate transportation of stolen property, a sentence ten months

below the bottom of the guideline range applicable to that count. It also imposed

a five-year sentence on the firearm count and ordered the two sentences to run

consecutively, as required by statute. 18 U.S.C. § 924(c)(1)(A )(i). Trujillo

appeals the sentence imposed by the district court on the interstate transportation

count, arguing the calculation of his advisory guideline range was erroneous and

violated his constitutional rights. This court exercises jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm s.




                                         -2-
II. Background

      Trujillo and two codefendants, Riemundo Bermudez and M elesio Rojas,

traveled to Casper, W yoming, with the stated purpose of robbing Brandt Loepp,

an acquaintance to whom Trujillo had regularly sold marijuana. The morning

after they arrived, Rojas asked Loepp to show him some stolen jewelry which

Loepp had offered to sell to Trujillo on a prior occasion. W hen Loepp opened the

safe where the jewelry was stored, Trujillo and Bermudez overpowered Loepp.

Trujillo and his confederates then restrained Loepp and his girlfriend with duct

tape, telephone cords, and electrical cords. In addition to the jew elry, they stole

Loepp’s wallet, two firearms, and a pound of marijuana which they had delivered

to Loepp the previous night. Trujillo and the other two men then locked the dead

bolt on the front door of Loepp’s home and fled the scene.

      As the men w ere returning to Denver, a Colorado State Patrol officer

observed their vehicle traveling ninety miles per hour, well over the posted speed

limit of seventy-five miles per hour, and activated his overhead emergency lights

to initiate a traffic stop. Trujillo, who was the driver of the vehicle, refused to

stop. After attempting to flee the officer for thirteen miles, Trujillo crashed the

car while exiting the interstate. A ll three men then attempted to escape on foot,

but were ultimately apprehended and placed under arrest. A subsequent search of

the vehicle, which itself was stolen, revealed multiple firearms, more than

$200,000 in stolen jewelry, and approximately one pound of marijuana.

                                          -3-
      Trujillo was indicted on four separate charges: possession of stolen

firearms, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (Count One); use of a

firearm during and in relation to a drug trafficking crime and aiding and abetting,

in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i) (Count Four); possession of a

firearm in furtherance of a drug trafficking crime and aiding and abetting, in

violation of 18 U.S.C. §§ 2 and 924(c)(1)(A )(i) (Count Five); and interstate

transportation of stolen property, in violation of 18 U.S.C. § 2314 (Count Six).

Trujillo pleaded guilty to Counts Five and Six pursuant to a plea agreement in

which the government agreed to dismiss the remaining counts, support a three-

level reduction for acceptance of responsibility, and recommend a sentence at the

low end of the advisory guideline range.

      After the guilty plea, a PSR was prepared. W ith respect to Count Six, the

PSR calculated a total offense level of twenty-seven and a criminal history

category of III, resulting in an advisory guideline range of 87 to 108 months. In

making this determination, the PSR applied USSG § 2B3.1. Although the PSR

noted a violation of 18 U.S.C. § 2314 typically corresponds to § 2B1.1, it cited

the commentary to that guideline, which states, “This guideline does not include

an enhancement for thefts from the person by means of force or fear; such crimes

are robberies and are covered under § 2B3.1 (Robbery).” U SSG § 2B1.1, cmt.

background. Based on this language and Trujillo’s underlying conduct, the PSR

determined Trujillo’s base offense level was twenty under § 2B3.1(a). It then

                                           -4-
applied a two-level enhancement for the physical restraint of a person to facilitate

comm ission of the offense or escape, § 2B3.1(b)(4); a one-level enhancement for

the taking of firearms and a controlled substance, § 2B3.1(b)(6); a three-level

enhancement for loss exceeding $250,000, § 2B3.1(b)(7)(D); a two-level

enhancement for Trujillo’s role as organizer, § 3B1.1(c); a two-level enhancement

for reckless endangerment during flight, § 3C1.2; and a three level reduction for

acceptance of responsibility, § 3E1.1(a), (b). Additionally, the PSR

recom mended four criminal history points for three juvenile convictions and tw o

criminal history points for Trujillo having comm itted the instant offense less than

two years after his release from custody on a prior offense.

      Trujillo filed written objections to the PSR and again objected to the

recommendations at sentencing. Among other objections involving specific

enhancements and the calculation of his criminal history score, Trujillo joined in

his codefendant’s objection to the use of § 2B3.1, the robbery guideline, to

calculate his base and total offense level under the Guidelines. He argued that

because Appendix A to the Sentencing Guidelines directs convictions under 18

U.S.C. § 2314 to § 2B1.1, and because the text of § 2B1.1 itself does not contain

any cross-reference to § 2B3.1, it would be improper for the sentencing court to

apply the robbery guideline to calculate his sentence. In response, the

government made two independent arguments to support the application of

§ 2B3.1. The government first argued the commentary to § 2B1.1, which was

                                         -5-
relied on by the PSR and suggests the use of the robbery guideline for theft by

means of force or fear, was not inconsistent with the Guidelines and, thus, should

be treated as authoritative. In the alternative, the government argued that because

the offense involved a firearm, § 2B1.1(c) required the court to cross-reference

§ 2K2.1, which, in turn, required reference to § 2B3.1, pursuant to

§ 2K2.1(c)(1)(A). 1 The district court rejected Trujillo’s objection and concluded

there were “two separate ways” which would ultimately lead to the application of

§ 2B3.1, based on the conduct underlying the offense. Adopting the

recommendations of the PSR, 2 the court determined Trujillo’s advisory guideline

range with respect to Count Six was 87 to 108 months. The court then granted

Trujillo a ten-month downward variance and sentenced him to seventy-seven

months on that count. On Count Five, the court imposed a five-year term of

imprisonment consecutive to the sentence on Count Six, as required under 18

U.S.C. § 924(c)(1)(A)(i) and (D)(ii).




      1
       Under USSG § 2K2.1(c)(1)(A ), the sentencing court is first directed to
§ 2X1.1 and then, by way of § 2X1.1(a), to the guideline for the substantive
offense, which the district court determined to be robbery in this case.
      2
       The district court granted Trujillo’s objection with regard to a juvenile
adjudication for assault and unlawful acts around schools. The court, however,
concluded that granting this motion had no effect on the calculation of Trujillo’s
criminal history score and resulting criminal history category.

                                         -6-
III. Analysis

      On appeal, Trujillo makes three separate challenges to the sentence

imposed by the district court: (1) the calculation of his criminal history category

violated Supreme Court precedent; (2) the district court improperly calculated his

offense level under the Guidelines based on judicially found facts; and (3) the

district court applied the w rong guideline to determine his base offense level. In

reviewing the district court’s application of the Sentencing Guidelines, this court

reviews factual findings for clear error and legal determinations de novo. United

States v. Serrata, 425 F.3d 886, 906 (10th Cir. 2005). This court gives “due

deference to the district court’s application of the guidelines to the facts.” Id.

(quotation omitted).

      A. Calculation of Crim inal H istory Category

      Trujillo first argues the district court erred in calculating his criminal

history category. He contends the assessment of six criminal history points and a

criminal history category of III was improper. Specifically, he asserts the

assignment of any criminal history category other than I w as a violation of both

Shepard v. United States, 544 U.S. 13 (2005), and United States v. Booker, 543

U.S. 220 (2005). W hile Trujillo does little to develop this argument, this court

construes it as a challenge to the district court’s use of documents other than

those explicitly approved in Shepard to establish the existence of Trujillo’s prior

convictions for purposes of calculating his advisory guideline range.

                                          -7-
Alternatively, it may be construed as an argument that the existence of prior

convictions must be admitted by a defendant or found by a jury beyond a

reasonable doubt. Each of these arguments is foreclosed by circuit precedent.

      In Shepard, the Supreme Court explained that in determining whether a

prior conviction may be characterized as a violent felony for purposes of the

Armed Career Criminal Act, a court may consider only “the statutory definition,

charging document, written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant assented.” 544

U.S. at 16. This court, however, has twice held that this same limitation does not

apply when determining “the fact of a prior conviction” for purposes of

calculating a defendant’s criminal history category. United States v. Townley,

472 F.3d 1267, 1277 (10th Cir. 2007) (quotation omitted); United States v.

Zuniga-Chavez, 464 F.3d 1199, 1204 (10th Cir. 2006). Rather, in this context, the

court may consider any relevant information, “provided that the information has

sufficient indicia of reliability to support its probable accuracy.” Zuniga-Chavez,

464 F.3d at 1203 (quoting USSG § 6A1.3(a)). Because Trujillo did not dispute

the reliability of the electronic records relied on by the district court, the district

court did not err in using these records to establish Trujillo’s prior convictions.

See Townley, 472 F.3d at 1277 (concluding records from the National Crime

Information Center Database were sufficient to establish the existence of the prior

convictions where appellant did not present any contradictory evidence).

                                           -8-
      Nor can Trujillo prevail on an argument that Shepard and Booker preclude

a sentencing court from calculating a defendant’s criminal history score based on

its own judicial factfinding as to the defendant’s prior convictions. In addition to

the more general precedent discussed below, which permits a judge to find

sentencing facts by a preponderance of the evidence, this court has recently

reiterated that the fact of a prior conviction need not be charged in an indictment

or found by a jury beyond a reasonable doubt. United States v. M oore, 401 F.3d

1220, 1224 (10th Cir. 2005); see also Almendarez-Torres v. United States, 523

U.S. 224, 226-27 (1998). This court has repeatedly emphasized that nothing in

Booker or Shepard has disturbed this well-settled rule. United States v. William s,

403 F.3d 1188, 1198 (10th Cir. 2005); M oore, 401 F.3d at 1223-24. Although

these cases each addressed prior convictions for purposes of the Armed Career

Criminal Act, their rationale applies with equal, if not greater, force in the context

of the Sentencing Guidelines, where the prior convictions are not used to increase

a sentence beyond the otherwise applicable statutory maximum.

      B. Sentence Enhancem ent

      Trujillo next argues the district court erred in calculating his sentence based

on facts not admitted in his plea agreement or found by a jury beyond a

reasonable doubt. He argues that by engaging in judicial factfinding to determine

both the applicable base offense level and the sentence enhancements, the district

court violated his Sixth Amendment rights, as set forth in Booker and

                                          -9-
Cunningham v. California, 127 S. Ct. 856 (2007). As a general matter, this

argument merits little response. This court has repeatedly explained that in

calculating a defendant’s sentence under the Guidelines, “a district court is not

precluded from relying on judge-found facts so long as the G uidelines are

considered as advisory rather than mandatory.” Townley, 472 F.3d at 1276; see

also United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10th Cir. 2006);

United States v. M agallanez, 408 F.3d 672, 685 (10th Cir. 2005). Because there

was no indication the district court erroneously treated the Guidelines as

mandatory, it was fully appropriate for the court to base its application of the

Guidelines on facts found by the judge by a preponderance of the evidence.

      Contrary to Trujillo’s suggestion, this well-established precedent is

unaffected by the Supreme Court’s recent decision in Cunningham. In

Cunningham, the Court invalidated a California statutory sentencing scheme that

required the sentencing court to impose a “middle term” sentence unless the judge

found additional aggravating facts. 127 S. Ct. at 860, 871. The Court explained

this system violated the Sixth Amendment because the judge was granted the sole

authority to find facts which were a prerequisite to the imposition of an “upper

term” sentence. Id. at 870-71. In doing so, however, the Court specifically

distinguished the determinate sentencing law at issue in Cunningham from the

now-advisory Federal Sentencing Guidelines, which allow judges to impose any

reasonable sentence within the statutory range, with or without additional

                                         -10-
findings. Id. at 870. The Court reemphasized that in Booker, all justices agreed

judicial factfinding would be constitutionally permissible under an advisory

sentencing system. Id. at 866.

      Thus, C unningham does nothing more than reaffirm the holding of Booker

as it relates to a mandatory sentencing scheme. It does nothing to undermine this

court’s post-Booker jurisprudence or to preclude a sentencing court from

engaging in judicial factfinding under the now-advisory Guidelines. See Rita v.

United States, 127 S. Ct. 2456, 2465-66 (2007) (explaining judicial factfinding

only violates the Sixth Amendment if the judge is forbidden from increasing a

defendant’s sentence in the absence of the judge-found facts).

      C. Application of U SSG § 2B3.1

      Trujillo’s final argument is that the district court erred in applying § 2B3.1,

the robbery guideline, to calculate his base offense level. In support of this

argument, Trujillo cites no relevant legal authority, but simply quotes the entirety

of the oral argument made by his codefendant on this point at sentencing.

Essentially, Trujillo contends the district court should have applied § 2B1.1, the

guideline referenced by Appendix A to the Sentencing Guidelines for a violation

of 18 U.S.C. § 2314. According to the argument incorporated by Trujillo,

because § 2B1.1 itself contains no cross-reference to the robbery guideline set

forth in § 2B3.1, the commentary on which the PSR and district court relied is

inconsistent with the text of the guideline and is, therefore, not authoritative.

                                         -11-
      As noted above, however, the district court concluded two alternative,

independent legal theories supported the application of § 2B3.1: (1) the

comm entary to § 2B1.1 requires § 2B3.1 to be applied when the underlying

conduct involves a theft from the person by means of force and fear; and (2)

§ 2B1.1(c)(1) contains an applicable cross-reference to § 2K2.1, which ultimately

directs the court to § 2B3.1, pursuant to § 2K2.1(c)(1)(A). 3 To the extent

Trujillo’s third argument constitutes a sufficient legal argument at all, it can only

be construed as a challenge to the first of these alternative rationales. It contains

no reference to the second, independently sufficient basis noted by the district

court in arriving at the robbery guideline. Trujillo has, therefore, forfeited any

challenge to the district court’s second alternative ground. See United States v.

Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) (“The failure to raise an issue in

an opening brief waives that issue.”). W here an appellant challenges only one of

two alternative rationales supporting a particular decision, the appellant’s success

on appeal is foreclosed, regardless of the merits of his arguments relating to the

challenged ground. Berna v. Chater, 101 F.3d 631, 633 (10th Cir. 1996).




      3
        The district court more fully addressed these two rationales in the
sentencing hearing of Trujillo’s codefendant, Bermudez, which immediately
preceded Trujillo’s hearing. Nevertheless, the court specifically incorporated its
analysis from Bermudez’s hearing into Trujillo’s hearing. This context, as well
as the court’s reference to the “two separate ways” for arriving at the robbery
guideline, make clear that the district court considered both rationales as
independently sufficient grounds for his decision.

                                         -12-
       Even if this court were to rule in Trujillo’s favor on the specific issue

presented in his appeal, he would not be entitled to relief because the district

court’s decision to apply § 2B3.1 would remain supported by the unchallenged,

alternative rationale. See id. Thus, in light of Trujillo’s failure to challenge both

grounds for the district court’s decision, it would be inappropriate for this court to

reach the merits of the third issue raised by Trujillo on appeal. Cf. Preiser v.

Newkirk, 422 U.S. 395, 401 (1975) (“[A] federal court has neither the power to

render advisory opinions nor to decide questions that cannot affect the rights of

litigants in the case before [it].” (quotation omitted)).

IV. Conclusion

       For the foregoing reasons, this court affirm s the sentence imposed by the

district court.

                                         ENTERED FOR THE COURT



                                         M ichael R. M urphy
                                         Circuit Judge




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