                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              April 6, 2007
                                        TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                  No. 06-3072
                                                     (D. Ct. No. 04-CR-10044-WEB)
 MARTIN EDWARD COLE,                                             (D. Kan.)

                Defendant - Appellant.



                               ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BALDOCK, and LUCERO, Circuit Judges.


       Defendant-Appellant Martin Cole was sentenced to 84 months’ imprisonment after

pleading guilty to being a felon in possession of a firearm. In a prior appeal, this Court

remanded to the District Court for resentencing in light of United States v. Booker, 543

U.S. 220 (2005). The District Court resentenced Mr. Cole to the same term of

imprisonment. Mr. Cole now appeals the District Court’s application of a four-level

enhancement under the U.S. Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and we AFFIRM.




       *
        This order and judgment is not binding precedent except under the doctrines of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. BACKGROUND

       In March 2004, Mr. Cole was indicted for being a felon in possession of a firearm

pursuant to 18 U.S.C. § 922(g)(1). He subsequently entered a conditional guilty plea. In

his plea agreement, Mr. Cole agreed to the following factual description of the offense:

       On December 25, 2003, the defendant was at the Time Out [Club] . . . .
       While the defendant was at the club he caused a disturbance and was asked
       to leave by Patricia Bazil, the bar owner. While in the parking lot the
       defendant pulled out a Jennings, Model J-22, .22 caliber handgun and shot
       in the vicinity of Ms. Bazil and a bar patron, Steven Hoyt. Ms. Bazil and
       Mr. Hoyt ran inside the club, locked the door, and 911 was called. The
       defendant left the scene in his white van. During a subsequent traffic stop
       of the defendant’s white van, officers of the Wichita Police Department
       found a Jennings, Model J-22, .22 caliber handgun and ammunition inside
       the van. The Jennings, Model J-22, .22 caliber handgun was manufactured
       outside the state of Kansas and therefore traveled in interstate commerce.

In October 2004, the District Court sentenced Mr. Cole to 84 months’ imprisonment, the

low end of the applicable range under the Guidelines. Under the plea agreement, Mr.

Cole waived his right to appeal his sentence with the exception of the right to appeal the

imposition of a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) (2003) for

possessing a firearm in connection with another felony offense,1 namely an aggravated

assault under Kansas law.

       In his first appeal to this Court, Mr. Cole argued that the District Court’s

application of the four-level enhancement under § 2K2.1(b)(5) entitled him to

resentencing under United States v. Booker, 543 U.S. 220, in which the Supreme Court

       1
        In the 2003 Guidelines, under which the court sentenced Mr. Cole, this
enhancement was contained in U.S.S.G. § 2K2.1(b)(5). The enhancement is now located
at U.S.S.G. § 2K2.1(b)(6).

                                            -2-
invalidated the mandatory application of the sentencing Guidelines and required district

courts to consult them in an advisory fashion. Id. at 245. Mr. Cole claimed that the

District Court violated Booker by applying the sentencing enhancement in a mandatory,

rather than advisory, fashion. After concluding that Mr. Cole’s Booker challenge was

preserved by the plea agreement, this Court remanded the case to the District Court for

resentencing. See United States v. Cole, 158 Fed. App’x 130, 133 (10th Cir. 2005).

       On remand, the District Court held a sentencing hearing at which Mr. Cole

reiterated an argument he had made during his first sentencing hearing: he argued that the

court should not apply the four-level enhancement based on aggravated assault because

he was acting in self-defense. At the end of the hearing, the court resentenced Mr. Cole

to the same term of 84 months’ imprisonment, supplementing its oral ruling with a

written order. In its order, the court reconsidered Mr. Cole’s original sentence in light of

the statutory factors under 18 U.S.C. § 3553(a) and concluded that a sentence within the

advisory Guidelines is appropriate.

       Mr. Cole again appeals his sentence. This time he argues that the District Court

erred in finding that he did not act in self-defense. He also claims that the court

improperly shifted the burden of proof to him in evaluating his claim of self-defense for

purposes of the four-level enhancement and that his Fifth Amendment right to due

process was violated because the Government did not prove the aggravated assault

beyond a reasonable doubt.




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                                    II. DISCUSSION

       We review a district court’s sentencing determination under a reasonableness

standard, which is guided by the statutory factors delineated in 18 U.S.C. § 3553(a). See

United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Under this standard, we

review the lower court’s factual findings for clear error. United States v. Valtierra-Rojas,

468 F.3d 1235, 1241 n.8 (10th Cir. 2006) (explaining that the clear error standard applies

both to the court’s calculation of the sentence under the Guidelines and to the court’s

factual findings concerning reasonableness). We review the court’s legal conclusions de

novo. See Kristl, 437 F.3d at 1054 (noting we review questions of law regarding

application of the Guidelines de novo); see also United States v. Wilfong, 475 F.3d 1214,

1217 (10th Cir. 2007) (noting we review constitutional challenges to sentences de novo).

       Although district courts now apply the Guidelines in an advisory fashion, they

remain a factor under § 3553(a), which courts must consider in sentencing a defendant.

See Booker, 543 U.S. at 264 (“The district courts, while not bound to apply the

Guidelines, must consult those Guidelines and take them into account when

sentencing.”); Kristl, 437 F.3d at 1053 (recognizing that courts must consider the

Guidelines). Moreover, because the Guidelines promote the important goal of uniformity

in sentencing, we have held that “a sentence that is properly calculated under the

Guidelines is entitled to a rebuttable presumption of reasonableness.” Kristl, 437 F.3d at

1054. To rebut this presumption, a defendant must demonstrate that the properly

calculated sentence is unreasonable in the context of the other § 3553(a) factors. Id.

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A.     Evidence of the Relevant Sentencing Facts

       Mr. Cole argues that the District Court erred in applying the enhancement because

the Government did not prove that he possessed the gun in connection with the felony

offense of aggravated assault. Specifically, Mr. Cole contends that the court erred in

finding that he did not act in self-defense. But based on our review of the record, the

District Court did not engage in any fact-finding. Rather, the court correctly applied the

enhancement based solely on facts Mr. Cole admitted.

       As noted above, in his first appeal to this Court, Mr. Cole argued that the District

Court had committed a non-constitutional Booker error by applying the Guidelines in a

mandatory, rather than advisory, fashion. A court commits a non-constitutional Booker

error “by applying the Guidelines in a mandatory fashion . . . even though the resulting

sentence was calculated solely upon facts that were admitted by the defendant, found by

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

403 F.3d 727, 731 (10th Cir. 2005). In contrast, a sentencing court commits a

constitutional Booker error “by relying upon judge-found facts, other than those of prior

convictions, to enhance a defendant’s sentence mandatorily.” Id. By arguing that the

court committed only a non-constitutional error, Mr. Cole tacitly acknowledged that the

enhancement was authorized by facts he admitted. See, e.g., United States v.

Labastida-Segura, 396 F.3d 1140, 1142 (10th Cir. 2005) (noting that the district court did

not commit a constitutional Booker error because “all operative sentencing facts were

admitted”). That is, Mr. Cole argued that because the court viewed the Guidelines as

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mandatory, it did not consider whether to deviate from the applicable Guidelines range by

choosing—as a matter of discretion—not to apply the enhancement authorized by

admitted facts. This Court agreed that the District Court had committed a non-

constitutional error and remanded for resentencing.2

       We did not, however, limit the scope of our remand to the court’s discretionary

determination of whether to deviate from the applicable Guidelines range. The District

Court was therefore free to reconsider whether the facts admitted by Mr. Cole authorized

the enhancement under § 2K2.1(b)(5). See United States v. Keifer, 198 F.3d 798, 801

(10th Cir. 1999) (holding that, unless we limit the remand, resentencing is de novo and

the district court “has the discretion to entertain evidence that could have been presented

at the original sentencing even on issues that were not the specific subject of the

remand”). But during his second sentencing hearing, Mr. Cole did not introduce any new

facts or evidence regarding the aggravated assault or his self-defense claim. Instead,

during the hearing, Mr. Cole’s attorney appealed to the court’s discretion, urging the court

to consider self-defense as a mitigating factor. In addition, his attorney admitted that Mr.

Cole’s actions in response to the perceived threat were “more than necessary,” thereby

acknowledging that his conduct did not meet Kansas’s statutory definition of self-



       2
        We held that the District Court’s non-constitutional error was not harmless
because the court imposed the “lowest possible sentence under what it considered to be
mandatory guidelines.” Cole, 158 Fed. App’x at 133. When a district court mandatorily
imposes a sentence at the bottom of the Guidelines range, the error is not harmless
because we cannot determine whether and how the lower court would have exercised its
discretion under advisory Guidelines. Labastida-Segura, 396 F.3d at 1143.

                                            -6-
defense.3 See United States v. Buonocore, 416 F.3d 1124, 1134 (10th Cir. 2005) (treating

admissions of defense counsel at sentencing as admissions of the defendant).

Furthermore, in addition to admitting that he shot the gun in the vicinity of two

individuals, Mr. Cole admitted that he intended to scare people when he fired the gun.

That is, he admitted facts establishing the elements of an aggravated assault.4 Hence, the

District Court did not err in concluding that the facts as admitted by Mr. Cole establish

that he used the firearm in connection with the felony offense of aggravated assault.

B.     Burden of Proof at Sentencing

       After listening to Mr. Cole’s arguments during the second sentencing hearing, the

District Court concluded that his statements concerning self-defense “do not overcome

the weight of the foregoing facts and admissions.” According to Mr. Cole, in finding that

his statements “do not overcome” the weight of certain facts and admissions, the court

impermissibly shifted the burden of proof from the Government to him. But as discussed

above, the court based the enhancement solely on admitted facts. In other words, the

Government had no burden to prove sentencing facts that Mr. Cole had already admitted,

and the court did not engage in any judicial fact-finding. In the absence of any new



       3
       Under Kansas law, “[a] person is justified in the use of force against an aggressor
when and to the extent it appears to him and he reasonably believes that such conduct is
necessary to defend himself or another against such aggressor’s imminent use of unlawful
force.” Kan. Stat. Ann. § 21-3211 (2005), amended by 2006 Kan. Sess. Laws ch. 194.
       4
       In Kansas, a person commits an aggravated assault if he or she uses “a deadly
weapon,” Kan. Stat. Ann. § 21-3410 (2005), and “intentionally plac[es] another person in
reasonable apprehension of immediate bodily harm,” id. § 21-3408.

                                            -7-
evidence, the court clearly did not err in concluding that the facts Mr. Cole admitted in his

plea agreement establish the felony offense of aggravated assault for purposes of the

enhancement.

       Similarly, because the enhancement was based on facts Mr. Cole admitted, rather

than facts found by a judge, Mr. Cole’s argument that sentencing facts must be proved

beyond a reasonable doubt is misplaced. But even if the enhancement were based on

judge-found facts, his argument would fail. After Booker, sentencing facts, including

facts concerning uncharged conduct, need not be proved beyond a reasonable doubt, as

Mr. Cole argues. Rather, as long as a district court applies the Guidelines in an advisory

fashion, facts may be proved by a preponderance of the evidence. United States v.

Magallanez, 408 F.3d 672, 685 (10th Cir. 2005); see also United States v. Rodriguez-

Felix, 450 F.3d 1117, 1131 (10th Cir. 2006) (“In the aftermath of Booker, we have

routinely permitted a district court to enhance a defendant’s sentence using uncharged

conduct proven to the court by a preponderance of the evidence.”). Provided the resulting

sentence is within the range authorized by the statute under which the defendant was

convicted, judicial fact-finding by a preponderance of the evidence does not violate the

Constitution. United States v. Crockett, 435 F.3d 1305, 1319 (10th Cir. 2006) (holding

that sentencing facts under the advisory Guidelines need only be found by a

preponderance of the evidence because “a conviction, by itself, authorizes a sentence up

to the statutory maximum”).




                                            -8-
C.     Reasonableness of the Enhancement

       Because the District Court properly applied the enhancement under the advisory

Guidelines, Mr. Cole’s sentence is entitled to a presumption of reasonableness. See

Kristl, 437 F.3d at 1054. Mr. Cole does not challenge his sentence on other grounds, and

he has not rebutted this presumption. We note, however, that the District Court

considered other § 3553(a) factors in resentencing Mr. Cole, and even without the

presumption, his sentence is reasonable.

       In addition to considering the advisory Guidelines, the court referred to other

§ 3553(a) factors in reaching its conclusion. See United States v. Jarrillo-Luna, 478 F.3d

1226, 1230 (10th Cir. 2007) (noting that, in considering an argument for leniency, a

sentencing judge “must somehow indicate that he or she did not rest on the Guidelines

alone, but considered whether the Guideline sentence actually conforms, in the

circumstances, to the statutory factors” (quotation omitted)). In particular, the court

determined that the sentence is necessary to reflect the serious nature of the offense,

especially given Mr. Cole’s criminal history. See 18 U.S.C. § 3553(a)(1). The court also

found that the sentence is necessary to provide adequate deterrence, see id.

§ 3553(a)(2)(B), and to protect the public, see id. § 3553(a)(2)(C), and that a sentence at

the low end of the advisory Guidelines range promotes uniformity in sentencing among

similar defendants, see id. § 3553(a)(6). The District Court therefore applied the

Guidelines in an advisory fashion and determined that, in its discretion, Mr. Cole’s

sentence of 84 months’ imprisonment is appropriate. We recognize that the District Court

                                            -9-
has “primary responsibility for determining whether to vary from the advisory

Guidelines,” United States v. Aguayo-Gonzalez, 472 F.3d 809, 813 (10th Cir. 2007), and

conclude that its decision not to do so is reasonable.

                                   III. CONCLUSION

       We therefore AFFIRM the District Court’s decision.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Chief Circuit Judge




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