                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      January 11, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 04-6333
 v.
                                                  (D.C. No. CR-03-242-T)
                                                        (W.D. Okla.)
 CLIFFORD MARTELL BROWN,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Defendant-Appellant Clifford Brown argues that the district court violated

his constitutional rights by enhancing his sentence based on facts not admitted by

him or found by a jury. The government concedes that error occurred and that the

error was not harmless. We therefore REMAND for resentencing.




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
                                 BACKGROUND

      As a result of a substantial federal and state investigation into the

trafficking of cocaine base in southwest Oklahoma, Brown was indicted along

with four other individuals for a variety of drug and firearm charges. Brown

pleaded guilty to conspiracy to possess with intent to distribute 50 or more grams

of cocaine base and 500 or more grams of cocaine. Brown’s presentence report

recommended a base offense level of 38 based on drug quantity, a two-level

enhancement for possession of a dangerous weapon, and a two-level enhancement

for obstruction of justice. This total offense level of 42, coupled with a criminal

history category of II, resulted in a recommended sentence range of 360 months to

life. Brown objected to the calculation of the base level and to the imposition of

the enhancements.

      At Brown’s sentencing hearing, the government conceded that Brown’s

objection to the obstruction of justice enhancement should be sustained because

the witness on whose testimony the enhancement was based could not be located.

Given this concession, the government also indicated that a three-level reduction

for acceptance of responsibility would be appropriate. Thus, the only

enhancement at issue was the two-level increase for possession of a dangerous




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weapon. After hearing testimony from a government witness, the court made a

finding that the enhancement was appropriate.

      At the hearing, Brown argued that in light of the Supreme Court’s decision

in Blakely v. Washington, 542 U.S. 296 (2004), all facts relevant to his sentence,

such as the drug quantities involved in the offense, must be decided by a jury

beyond a reasonable doubt rather than by the sentencing court. The court

responded by ruling that it would impose a sentence under the Sentencing

Guidelines, as the issue of the Guidelines’ constitutionality was at that time

pending before the Supreme Court, but that it would also impose an alternative

sentence in the event that the Guidelines were invalidated.

      At the conclusion of the hearing, the district court noted that Brown’s

Guideline range—resulting from a base offense level of 38, a two-point firearm

enhancement, a three-point reduction for acceptance of responsibility, and a

criminal history category of II—was 235 to 293 months. The court announced a

Guidelines sentence of 235 months and, in the event that the Guidelines were

ruled unconstitutional, an alternative sentence of 15 years (180 months).

                                  DISCUSSION

      In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), the

Supreme Court held that “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts


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established by a plea of guilty or a jury verdict must be admitted by the defendant

or proved to a jury beyond a reasonable doubt.” Id. at 756. “As a result, the

Court held that mandatory application of the Guidelines violates the Sixth

Amendment when judge-found facts, other than those of prior convictions, are

employed to enhance a sentence.” United States v. Gonzalez-Huerta, 403 F.3d

727, 731 (10th Cir. 2005) (en banc), cert. denied, 126 S. Ct. 495 (2005).

      Brown’s objection based on Blakely was sufficient to preserve his Booker

argument on appeal, see United States v. Geames, 427 F.3d 1333, 1339 (10th Cir.

2005), and thus we review for harmless error, see United States v. Riccardi, 405

F.3d 852, 874-75 (10th Cir.2005), cert. denied, 126 S. Ct. 299 (2005). Booker

error is harmless when the government shows that the error “did not affect the

district court's selection of the sentence imposed.” Id. at 875 (quotations

omitted).

      The government concedes, and we agree, that the district court committed

constitutional Booker error. The government also admits that it cannot show that

the error did not affect the sentence imposed in light of the fact that the district

court announced an alternative sentence lower than the Guideline sentence

actually imposed. We agree that the error was not harmless.

      We therefore REMAND this action to the district court with instructions to

vacate Brown’s sentence and to resentence him in accordance with Booker.


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ENTERED FOR THE COURT



David M. Ebel
Circuit Judge




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