                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          July 12, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-3382
 v.                                          (D.C. No. 03-CR-40097-03-SAC)
                                                         (Kansas)
 JOSHUA J. QUIRARTE,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Joshua J. Quirarte pled guilty to two counts of distribution of 691 grams

and 1,356 grams respectively of methamphetamine, in violation of 21 U.S.C. § §

841 (a)(1), (b)(1)(A) and 18 U.S.C. § 2. The district court sentenced him to two

43-month sentences, to be served concurrently. Mr. Quirarte appeals his

      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
sentence, challenging the district court’s refusal to grant a two-level reduction

under U.S.S.G. § 3B1.2 for being a minor participant. He also contends his

sentence is contrary to United States v. Booker, 125 S. Ct. 738 (2005), and

Blakely v. Washington, 124 S. Ct. 2531 (2004). We affirm.

      Mr. Quirarte, along with several other individuals, participated in a number

of different drug transactions. He pled guilty to distributing methamphetamine on

two different occasions, including one deal where he was not accompanied by his

cohorts. Information detailed in his presentence report (PSR) indicated Mr.

Quirarte was involved in at least two other drug transactions, including a deal in

which he was responsible for carrying money from the buyer. The report also

indicated that the other individuals participating in these transactions played a

greater role than Mr. Quirarte. He did not contest the additional facts in the PSR,

but described himself as a simple drug courier, with his only interest in the

operation being the flat fee he received for transporting the drugs. Because of

this allegedly limited involvement, Mr. Quirarte believes the district court should

have awarded him a two-level reduction for being a minor participant.

      The PSR calculated Mr. Quirarte’s base level offense at 34. It

recommended a two-level reduction under the safety valve provision of U.S.S.G.

§ 5C1.2 and a three-level reduction for acceptance of responsibility pursuant to §

3E1.1(a) and (b). It did not recommend a two-level reduction under § 3B1.2 for


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being a minor participant, to which Mr. Quirarte objected. His total offense level

of 29 combined with a criminal history category of I yielded a guideline range of

87-108 months.

      The district court adopted the PSR’s findings, granted the government’s

motion for a downward departure for substantial assistance pursuant to § 5K1.1,

and sentenced Mr. Quirarte to concurrent 43-month sentences. Moreover,

foreseeing the possibility that the federal sentencing guidelines would be deemed

unconstitutional in light of Blakely and the then pending Booker appeal, the

district court issued an alternative sentence, stating it would impose the same

sentence for Mr. Quirarte under an advisory guidelines regime as it had under the

mandatory system.

      Mr. Quirarte first contends the district court erred by refusing to grant a

two-level downward adjustment for being a minor participant in the drug

distribution crime. The defendant’s role in the offense, as determined by the trial

court, is treated as a factual finding and is therefore subjected to review under the

“clearly erroneous” standard. See United States v. Santistevan, 39 F.3d 250, 253

(10th Cir. 1994). “A finding of fact is ‘clearly erroneous’ if it is without factual

support in the record,” Manning v. United States, 146 F.3d 808, 812 (10th Cir.

1998). In practice, “the ‘clearly erroneous’ standard requires the appellate court

to uphold any district court determination that falls within a broad range of



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permissible conclusions.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400

(1990).

      Section 3B1.2 of the sentencing guidelines permits a district court to grant

a two-level offense reduction if it finds the defendant was a minor participant in

the offense. Mr. Quirarte admits he was involved in two different drug

transactions, one of which he completed without the presence of his more

involved counterparts. The district court was not persuaded Mr. Quirarte was

merely a courier and found the facts he pled to, along with the additional

information detailed in the PSR, sufficient to deny a two-level minor participant

reduction. We have routinely held, and Mr. Quirarte concedes, that even if the

defendant is a “middle man” and simply assisting more culpable third parties, the

district court is not compelled to exercise its discretion and grant a base offense

level reduction under § 3B1.2. See Santistevan, 39 F.3d at 254 (holding multiple

distributions of controlled substances sufficient for district court to deny base

level offense reduction for minimal participation under § 3B1.2); see also United

States v. Montoya, 24 F.3d 1248, 1249 (10th Cir. 1994) (defendant’s involvement

in more than single drug transaction undermined eligibility for § 3B1.2

reduction); United States v. Garcia, 987 F.2d 1459, 1461 (10th Cir. 1993)

(upholding sentencing court’s refusal to grant reduction where defendant was “go-

between”). The court’s denial of Mr. Quirarte’s request for a base offense level



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reduction is supported by the evidence and is not clearly erroneous.

      Mr. Quirarte next complains that his sentence violated his Sixth

Amendment rights. In Blakely, the Supreme Court extended the rule it expressed

in Apprendi v. New Jersey, 530 U.S. 466 (2000), to Washington state’s

determinate sentencing regime. 124 S. Ct. at 2536. In Booker, the Court applied

Apprendi and Blakely to the federal sentencing guidelines, holding the Sixth

Amendment requires that “[a]ny fact (other than a prior conviction) which is

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

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.” Booker, 125 S. Ct. at 756. To

remedy the guidelines’ Sixth Amendment problem, the Court made the guidelines

advisory in all cases. Id. at 757. The Court also expressly stated that its

“interpretation of the Sentencing Act” must be applied “to all cases on direct

review.” Id. at 769. We therefore evaluate Mr. Quirarte’s sentence in light of the

Court’s holding in Booker.

      Sentences issued prior to Booker give rise to both constitutional and non-

constitutional errors. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-

32 (10th Cir. 2005). A constitutional Booker error exists when a sentencing court

relied on judge-found facts to enhance a defendant’s sentence in violation of the

Sixth Amendment. Non-constitutional Booker error arises when a court applied



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the federal sentencing guidelines in a mandatory fashion, even if the sentence was

calculated based on facts that were admitted by the defendant, found by the jury,

or based on a prior conviction. Id.

      Because Mr. Quirarte did not raise his Sixth Amendment argument

regarding § 3B1.2 in the district court, we review his claim for plain error. 1 F ED .

R. C RIM . P. 52(b); see also United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir.

2005). To establish plain error, Mr. Quirarte must demonstrate that there was (1)

error (2) that is plain and (3) affected his substantial rights. United States v.

Cotton, 535 U.S. 625, 631 (2002); Gonzalez-Huerta, 403 F.3d at 732. If Mr.

Quirarte satisfies his burden of establishing the first three prongs of the plain

error test, we may exercise our discretion to correct the error if it “seriously

affect[ed] the fairness, integrity or public reputation of the judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 469-70 (1997) (quoting United States v.

Olano, 507 U.S. 725, 736 (1993)); Gonzalez-Huerta, 403 F.3d at 732.

      This case does not present a constitutional Booker error because Mr.

Quirarte’s sentence was not enhanced based on judicial fact-finding. He claims

the district court’s refusal to grant a reduction in his base offense level for being


      1
        At trial, Mr. Quirarte argued the drug amounts attributed to him violated
Blakely v. Washington, 124 S. Ct. 2531 (2004), but conceded that even without
the additional drug amounts his base offense level would be the same. He does
not reiterate this argument on appeal and we deem it waived. See State Farm Fire
& Cas. Co. V. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                          -6-
a minor participant was a constitutional Booker error because the court’s decision

was based on judge-found facts. We have already ruled that the denial of an

offense level reduction based on judge-found facts cannot be deemed to

“enhance” a defendant’s sentence for Booker purposes. United States v. Payton,

405 F.3d 1168, 1173 (10th Cir. 2005). Moreover, Booker held that only judge-

found facts that increase the defendant’s sentence above that permitted by facts

found by a jury or admitted by the defendant violates the Sixth Amendment. 125

S. Ct. at 756. Here, Mr. Quirarte’s guilty plea alone, without the downward

adjustments he did receive, would warrant a sentencing range from 151-188

months. 2 Thus, his sentence was not increased above the range permitted by a

jury finding or his guilty plea and the Sixth Amendment was not violated.

      But Mr. Quirarte was sentenced under a mandatory sentencing scheme,

which constitutes non-constitutional Booker error. See Gonzalez-Huerta, 403 F.3d

at 732. As the error is now plain, he has satisfied the first two prongs of the plain

error test. Id. Nonetheless, he has failed to establish the third prong, that is, that

the error affected his substantial rights. In order to so demonstrate, Mr. Quirarte

must show “a reasonable probability that but for the error claimed, the result of the


      2
       The offenses to which Mr. Quirarte pled guilty involved 2.04 kg of
methamphetamine. Section 2D1.1(c)(1)(3) provides that when the amount
involved is at least 1.5 kg but less than 5 kg of methamphetamine, the base
offense level is 34. A base offense level of 34 coupled with a criminal history
category of I yields an applicable guideline range of 151-188 months.

                                          -7-
proceeding would have been different.” Id. at 733 (quoting United States v.

Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004)). The district

court, foreseeing the possibility that the sentencing guidelines would be deemed

advisory, issued an alternative sentence identical to the sentence mandated by the

guidelines. In United States v. Serrano-Dominguez, this court held that where the

district court issued an alternative sentence identical to the sentence mandated by

the guidelines, the resulting error was harmless because “[t]he district court’s

statement eliminates any need to speculate about what it would do on remand.”

406 F.3d 1211, 1224 (10th Cir. 2005). In light of the district court’s alternative

sentence, Mr. Quirarte cannot establish that additional sentencing proceedings

would be different but for the non-constitutional Booker error. Because Mr.

Quirarte failed to succeed on prong three, we need not reach prong four of the test.

United States v. Ambort, 405 F.3d 1109, 1211 (10th Cir. 2005).

      For the aforementioned reasons, we AFFIRM Mr. Quirarte’s sentence.


                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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