                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            September 7, 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 04-6390
 v.                                                      (W.D. Oklahoma)
 CHAD EVERETT LEFORCE,                                (D.C. No. CR-04-110-L)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Chad Everett LeForce pleaded guilty to a two-count information




      *
        This order and judgment is not binding precedent, except under the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.
charging him with possession of a firearm after a prior felony conviction, in

violation of 18 U.S.C. § 922(g)(1), and possession methamphetamine with intent

to distribute, in violation of 21 U.S.C. § 841(a)(1). Mr. LeForce objected to his

calculated sentencing guideline range based on Blakely v. Washington, 124 S. Ct.

2531 (2004). He claimed that a four-level sentencing guideline enhancement for

possessing the firearm in connection with another felony offense, pursuant to

USSG § 2K2.1(b)(5), was neither found by a jury nor admitted. The district court

overruled the Blakely objection and sentenced Mr. LeForce to serve an 86-month

sentence. Mr. LeForce timely appeals this sentence, arguing that he should be

re-sentenced in light of United States v. Booker, 125 S. Ct. 738 (2005). For the

reasons set forth below, we reject that argument and affirm the sentence.



                          I. FACTUAL BACKGROUND

      On November 18, 2003, Mr. LeForce was stopped by police for driving a

van with no license tag light. When he advised the officer that he did not have a

driver’s license, the officer asked Mr. LeForce to step out of the van. The officer

noticed a bulge in the sweatshirt Mr. LeForce was wearing, so he conducted a pat-

down search and found Mr. LeForce was wearing an empty holster. The officer

asked him if there was a weapon in the vehicle, and Mr. LeForce said “no.” His




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passenger, however, pointed to a jacket where a loaded .380 caliber pistol was

found. The passenger said Mr. LeForce had given her the gun to hide.

      The officer arrested Mr. LeForce and a search of the van revealed seven

clear plastic baggies of methamphetamine found inside an “Altoids” mints

container. The methamphetamine discovered during this incident formed the

basis of count 1 of the information.

      On March 2, 2004, police officers again discovered a firearm and quantity

of methamphetamine in Mr. LeForce’s van. That incident served as the basis for

Count 2.

       In light of Mr. LeForce’s prior conviction for a crime of violence, the

presentence report (PSR) recommended a base offense level of 20. The district

court imposed a four-point increase in the offense level pursuant to USSG §

2K2.1(5), finding that Mr. LeForce had possessed the firearm in connection with

another felony offense, the possession of methamphetamine. The adjusted offense

level for Count 1 was thus 24. The PSR recommended a three level reduction for

acceptance of responsibility, resulting in a total offense level of 21. With Mr.

LeForce’s criminal history category of VI, the guideline range of imprisonment

was 77-96 months.

      As to Count 2, the PSR recommended a base offense level of 20, in light of

the amount of the controlled substance. Mr. LeForce’s plea agreement provided a



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stipulation that a firearm was possessed in connection with the possession of the

methamphetamine charged in count 2. Accordingly, two levels were added based

on a firearm enhancement pursuant to USSG § 2D1.1(b)(1), and the adjusted

offense level was 22.

       Mr. LeForce objected to the recommended four-level enhancement as to

count 1 for possessing the firearm in connection with another felony offense. See

USSG § 2K2.1(b)(5). He argued that the enhancement was based on facts neither

found by the jury nor admitted by him.

      Had the district court not applied this four-level enhancement, Mr.

LeForce’s adjusted offense level would have been 20. In this event, after “taking

the offense level applicable to the [g]roup with the highest offense level,” USSG

§ 3D1.4, the court would have determined the base offense level by using the

guideline for the highest offense conduct, which in this case was level 22 for

count 2. Reducing that adjusted offense level by three points for acceptance of

responsibility would yield a total offense level of 19. With a criminal history

category of VI, the guideline range is 63 - 78 months’ imprisonment.

      At sentencing, the district court recognized that it could impose an alternate

sentence, but acknowledged that the courts “are creating great confusion for the

Bureau of Prisons in alternate sentences.” Rec. vol. 3, at 6. “So it is my position

that until the Supreme Court either overturns or changes the calculations in some



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way, it is my position that this Court is going to overrule your objection based

upon Blakely.” Id.

       The court then imposed a term of imprisonment of 86 months and three

years supervised release on each count, to be served concurrently. That sentence

is eight months longer than the maximum of the range that the court could have

imposed if it had not adopted the four-level § 2K2.1(b)(5) enhancement on count

2.

      When it imposed Mr. LeForce’s sentence, the district court further noted

that “it is going to be a lengthy sentence.” Id. at 12. The court concluded that

“the proper sentence in reviewing everything was in the middle of the guideline

range; not at the high end, not the low end, but in the middle considering all the

factors.” Id. at 15.



                                  II. DISCUSSION

      In United States v. Riccardi, 405 F.3d 852, 874 (10th Cir. 2005),

we noted,

             In Booker, . . . 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 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.” To remedy this violation, the Court
      struck down those provisions of the Sentencing Reform Act that
      required mandatory application of the Guidelines, instead requiring
      district courts to consult them in an advisory fashion. Id. at 756-57

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      (excising 18 U.S.C. §§ 3553(b)(1), 3742(e)). Under Booker, therefore,
      the sentencing procedure in this case was unconstitutional. The jury did
      not find, and the defendant did not admit, the facts on which the district
      court relied to enhance [the defendant’s] sentence pursuant to the
      mandatory Guidelines.

      Because Mr. LeForce raised Blakely in the district court, he adequately

preserved his constitutional Booker claim, so we review for harmless error. See

United States v. Lang, 405 F.3d 1060, 1065 (10th Cir. 2005). According to

Federal Rule of Criminal Procedure 52(a), “[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded” on harmless

error review. Under the harmless error analysis, the government bears the burden

of demonstrating that the error was harmless beyond a reasonable doubt. Lang,

405 F.3d at 1065. In analyzing whether a preserved constitutional Booker error is

harmless, we have considered various factors, including whether overwhelming

evidence supports the district court’s factual findings and whether the district

court would have imposed a less severe sentence had it known it had discretion.

Riccardi, 405 F.3d at 875-76.

      Applying these standards, we conclude for several reasons that the

constitutional Booker error here was harmless in that it did not violate Mr.

LeForce’s constitutional rights. First, we note that Booker emphasized that courts

must consider the factors set forth in 18 U.S.C. § 3553(a). Booker, 125 S. Ct. at

765-66. Here, it is evident from the district court’s observations that it engaged



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in an objective consideration of § 3553(a)’s sentencing factors when sentencing

Mr. LeForce. The district court recommended that the defendant participate in

drug and vocation programs, so that he might be employable and able to assume

his familial obligations when he completed his sentence. The district court also

recommended participation in the Residential Drug Abuse program while

incarcerated, and imposed a special condition that Mr. LeForce participate in

mental health and substance abuse aftercare during his three-year term of

supervised release. There is no indication in the record that the district court’s

consideration of these factors after Booker would result in a lesser sentence.

      Secondly, we note that while Mr. LeForce made a legal objection to the

judge-found facts that increased his sentence, he did not challenge the factual

basis of this finding until this appeal. Mr. LeForce’s “decision not to contest

these facts is [a] strong indication that the district court based the sentencing

enhancements on Mr. [LeForce’s] actual conduct.” Riccardi, 405 F.3d at 876.

Before us, Mr. LeForce argues that the firearm was found in the van under the

passenger’s jacket, while the methamphetamine was discovered in an undisclosed

part of the passenger compartment. As the government points out, however, the

passenger said that Mr. LeForce gave her the firearm to hide, a story supported by

Mr. Leforce’s empty holster. The evidence strongly suggests that the firearm




                                          -7-
“had the potential to facilitate” the underlying felony. United States v. Bunner,

134 F.3d 1000, 1006 (10th Cir. 1998) (interpreting § 2K2.1(b)(5)).

      In the end, in light of the district court’s detailed findings, there is little

reason to think it would impose a less severe sentence in the exercise of its

post-Booker discretion.

      On the contrary, the district court acknowledged its intent to impose a

“lengthy” sentence, and sentenced Mr. LeForce in the middle of the applicable

Guideline range. Cf. United States v. Labastida-Segura, 396 F.3d at 1140, 1143

(10th Cir. 2005) (holding that an error was not harmless where the district court

sentenced at the bottom of the range). There is little reason to think the district

court “would exercise [its] now-greater discretion to reduce the sentence” after

having made such observations. Riccardi, 405 F.3d at 806. Nor do the court’s

remarks at sentencing suggest anything other than a belief that an 86-month

sentence was appropriate in light of all the circumstances.



                                  III. CONCLUSION

      Accordingly, we are satisfied that although the sentence was imposed in

violation of Sixth Amendment standards as set forth in Booker, the error did not




                                           -8-
violate Mr. LeForce’s substantial rights and was harmless.



                               Entered for the Court,

                               Robert H. Henry
                               Circuit Judge




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