                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           July 6, 2005
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-1342
 v.
                                                 (D.C. No. 03-CR-157-WM)
                                                         (D. Colo.)
 IVAN SEGURA,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      In this direct criminal appeal, Defendant-Appellant Ivan Segura argues he

is entitled to resentencing in light of United States v. Booker, 125 S. Ct. 738




      *
        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Order and Judgment is not binding precedent, except under the doctrines of law of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.
(2005). We disagree. 1 Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28

U.S.C. § 1291, we AFFIRM Segura’s sentence.

I.    Facts.

      The Government charged Segura, a registered nurse, with fifty-two criminal

counts stemming from his taking narcotics from the emergency department in

which he worked. In exchange for the Government dropping fifty-one counts,

Segura agreed to plead guilty to one count of tampering with a consumer product,

in violation of 18 U.S.C. § 1365(a)(4). In his plea agreement, Segura admitted

that, while working as a registered nurse in the emergency room at Evans Army

Community Hospital at Fort Carson, Colorado, Segura accessed a secured

automated drug dispensing station, took narcotics for his own use, and replaced

the stolen narcotics with either saline solution or other drugs. Segura agreed that

the district court would use the federal sentencing guidelines to calculate Segura’s

sentence.

      Applying those guidelines, the district court calculated Segura’s base

offense level to be 25. See U.S.S.G. § 2N1.1. The court then added two levels



      1
             Although the Government conceded that there was Booker error here
and agreed that the case should be remanded, we are not bound by the
Government’s concession. A remand involves more than just the interests of the
two parties; it also consumes scarce judicial resources on remand. We are
unwilling to incur that loss when the record is clear that defendant waived his
Booker objection.

                                        -2-
after finding Segura had abused a position of trust or special skill. See id.

§ 3B1.3. Subtracting three levels for Segura’s accepting responsibility, see id.

§ 3E1.1, the district court determined Segura’s final offense level to be 24. His

criminal category was III, resulting in a guideline range of 63-78 months.

Nevertheless, the district court departed downward from that guideline range after

the court found that Segura’s criminal history score overrepresented his actual

criminal history. 2 The district court’s using the lower category II criminal history

score resulted in a guideline range of 57-71 months. The court imposed a

sixty-month sentence.

      Before the district court sentenced Segura, however, the Supreme Court

decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), 3 in which

the Court held that Washington’s sentencing scheme was unconstitutional. See id.


      2
             Segura’s criminal history included a 1995 misdemeanor harassment
conviction involving Segura and his former wife, for which Segura received a
twenty-four-month deferred sentence; a 1997 misdemeanor harassment
conviction, again involving Segura and his former wife; and a 2002 misdemeanor
conviction for driving while impaired, for which he received probation.
According to Segura, he served no jail time for any of these prior convictions.
      3
              The district court conducted a sentencing hearing on May 27, 2004.
At that time, the court incorporated the presentence report and overruled Segura’s
objection to the two-level enhancement for abusing a position of trust or using a
special skill. The court, however, continued the sentencing hearing to enable
Segura to have his psychiatric expert clarify her opinion, which was relevant to
Segura’s motion for a downward departure. The district court reconvened the
sentencing proceeding July 16, 2004. The Supreme Court had decided Blakely in
the interim, on June 24, 2004.

                                         -3-
at 2538. Because Washington’s sentencing scheme was similar to the federal

sentencing guidelines, Segura filed a motion urging the district court to declare

the federal sentencing guidelines unconstitutional. In fact, the Supreme Court

later applied Blakely to the federal guidelines in Booker, 125 S. Ct. 738 (2005).

      The district court gave Segura the opportunity to withdraw his guilty plea

in light of Blakely. Segura, however, declined to do so. The district court then

applied the guidelines to impose the sixty-month sentence. Segura appeals.

II.   Issues.

      Segura asserts he is entitled to be resentenced in light of Booker. “[T]here

are two distinct types” of Booker error. United States v. Gonzales-Huerta, 403

F.3d 727, 731 (10th Cir. 2005) (en banc).

      First, a court could err by relying upon judge-found facts, other than
      those of prior convictions, to enhance a defendant’s sentence
      mandatorily. As Booker makes clear, the Sixth Amendment prohibits
      this practice. . . . Second, a sentencing court could err by applying
      the Guidelines in a mandatory fashion, as opposed to a discretionary
      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.

Id. at 731-32. Segura asserts both types of Booker error occurred at his

sentencing. We disagree.

      A.     Constitutional Booker error.

      Segura argues that the district court violated the Sixth Amendment when it

applied U.S.S.G. § 3B1.3 to enhance Segura’s sentence after finding that, in

                                        -4-
tampering with a consumer product, Segura “abused a position of public or

private trust, or used a special skill, in a manner that significantly facilitated the

commission or concealment of the offense.” “Whether a defendant occupied a

position of trust within the meaning of USSG § 3B1.3 is a factual question.”

United States v. Edwards, 325 F.3d 1184, 1185 (10th Cir. 2003) (quotation

omitted).

      There is no Sixth Amendment error here because Segura admitted in his

plea agreement all the facts necessary for the district court to apply U.S.S.G.

§ 3B1.3. Segura acknowledged that was a registered nurse. He admitted that,

while working in the emergency department at the Evans Army Community

Hospital, he had access to the “secure[] automated inventory control and drug

dispensing station.” That station held narcotics intended for emergency room

patients. Only authorized emergency department personnel such as Segura could

remove the narcotics by entering their “confidential identifiers and passwords.”

Segura admitted that, “[o]n approximately 300 occasions from on or about June

19, 2002 through on or about January 6, 2003,” he accessed the secured medicine

dispensing station and took syringes containing Demerol or morphine sulfate for

his own use. These drugs were kept “ready for injection in pre-filled, disposable,

sterile containers called Carpuject syringes.” Segura obtained these drugs

      by entering codes which represented that he was removing narcotics
from the . . . Medstation for patient administration, removing narcotics for his

                                          -5-
own use, and then entering codes which falsely represented that he was cancelling
the transaction and returning unused drugs to the . . . Medstation. On each of
these occasions, [Segura] concealed the removal of narcotics by replacing
sterile Carpuject syringes with other syringes which he had taken on previous
occasions and refilled by injection with saline solution, or the injectable drugs
Nubain . . . or Phenergan . . . . By replacing the Demerol and morphine sulfate
with another liquid, SEGURA created the appearance that the Carpuject syringes
were unopened and intact, and still contained the amount and concentration of
sterile, injectable Demerol and morphine sulfate indicated on the package label,
when such was not the case. By puncturing the protective plastic cartridge
containing the syringe with a hyperdermic needle, [Segura] also negated the
packaging measures employed by the manufacturer to ensure sterility of the
Carpuject syringes. By replacing the refilled Carpuject syringes back into the . .
. Medstation at the . . . Emergency Room, [Segura] put consumer products with
which he had tampered back into the stream of interstate commerce, in that the
altered contents of the Carpuject syringes were available for administration to
patients who came to [the hospital] for emergency medical treatment. In doing
so, [Segura] acted with reckless disregard for the risk that patients who came to
the Emergency Department . . . would be placed in danger of bodily injury,
including physical pain, and under the circumstances manifesting extreme
indifference to such risk.

Based upon the facts Segura admitted, the district court applied U.S.S.G. § 3B1.3

to enhance Segura’s offense level. Booker requires only 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 (emphasis added). There was, then, no Sixth

Amendment error in this case. See United States v. Serrano-Dominguez, 406 F.3d

1221, 1223 (10th Cir. 2005); United States v. Porter, 405 F.3d 1136, 1143 (10th

Cir. 2005) (in dicta).


                                        -6-
      B.     Non-constitutional error.

      Segura also asserts that the district court erred in applying the sentencing

guidelines in a mandatory manner. In his plea agreement, however, Segura agreed

that the district court would impose a sentence calculated under the federal

sentencing guidelines. After Blakely, Segura did challenge the guidelines’

validity. In response, the district court gave Segura the opportunity to withdraw

from the plea agreement. Segura, however, declined to do so and, thus, ratified

the original plea agreement. Therefore, although Segura has continued to assert

that the district court should not have applied the federal sentencing guidelines,

Segura ultimately agreed to be sentenced under those guidelines. See United

States v. Green, 405 F.3d 1180, 1189 (10th Cir. 2005) (noting defendant’s

agreeing, in pre-Booker plea agreement, that district court would apply sentencing

guidelines and could depart from those guidelines under only certain

circumstances, “indicated an acceptance of the mandatory Guidelines regime that

existed before Booker”); cf. Serrano-Dominguez, 406 F.3d at 1222 (noting that

defendant reaffirmed his plea agreement after Blakely, but in signed statement

reserved in writing the right to challenge the federal guidelines’ constitutionality).

There is, then, also no non-constitutional Booker error in this case. See United

States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005) (holding, e.g., defendant’s

pre-Booker plea agreement, in which he agreed that he would be sentenced


                                         -7-
pursuant to sentencing guidelines, precluded granting defendant relief

post-Booker because trial court treating guidelines as mandatory rather than

advisory).

       Even if we were to conclude that Segura had not acquiesced to sentencing

under the federal guidelines and, thus, the district court had erred in applying the

guidelines in a mandatory manner, we would further conclude that the error was

harmless, see Fed. R. Crim. P. 52(a), because the district court sentenced Segura

in the middle of the applicable guideline range. There is, then, no “reason to

think that the district judge would have imposed a less severe sentence in the

exercise of his post-Booker discretion.” United States v. Riccardi, 405 F.3d 852,

876 (10th Cir. 2005).

III.   Conclusion.

       For these reasons, we AFFIRM Segura’s sentence.


                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                         -8-
