                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   March 23, 2010
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-1027
 v.                                           (D.C. No. 1:07-CR-00172-CMA-6)
                                                          (D. Colo.)
 BREVELLE CROCKETT,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before HARTZ, SEYMOUR, and GORSUCH, Circuit Judges.


      Mr. Brevelle Crockett appeals the district court’s imposition of a sentence

of 135 months’ imprisonment, arguing that the district court applied the incorrect

standard of proof in determining his sentence, thereby causing a violation of his

Fifth and Sixth Amendment rights to due process and a jury trial. Because Mr.

Crockett waived his Sixth Amendment right to a jury as a part of his plea

agreement and because our precedent supports the use of the standard of proof


      *
       This order and judgment is not binding precedent, except under the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 under the terms and conditions
of 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
applied by the district court under the circumstances in this case, we affirm.

      Mr. Crockett pled guilty to knowingly possessing with intent to distribute

more than 500 grams of a mixture and substance containing a detectable amount

of cocaine (here, approximately 994.9 grams) in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. The statutory maximum sentence for a

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) is forty years’ imprisonment.

The parties stipulated that a within-guideline sentence would be reasonable. With

respect to sentencing decisions that remained to be determined by the district

court at sentencing, the parties also agreed that “[t]he Court [was] free . . . to

reach its own findings of facts and sentencing factors considering the parties’

stipulations, the pre-sentence investigation, and any other relevant information.”

Rec., vol. I at 298 (citation omitted).

      The parties disputed the appropriate base offense level in the plea

agreement. The government’s position was that pursuant to U.S.S.G. § 1B1.3, the

base offense level should be computed by calculating the total amount of cocaine

involved in this case (5 kg) for a level of thirty-eight. Mr. Crockett argued that

the base offense level should be calculated based upon the amount of cocaine to

which he pled guilty, a base-offense level of twenty-six. Mr. Crockett did not

contest the facts proffered by the government regarding his relevant offense

conduct in the plea agreement, but reserved the right to do so at sentencing.

      The presentence report’s (PSR) description of the offense conduct recited

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the government’s evidence of relevant drug quantities. The PSR calculation

resulted in an advisory guideline range of 135 to 168 months. Neither Mr.

Crockett nor the government objected to the contents of the PSR.

      At sentencing, the district court confirmed that neither party had filed

objections to the PSR and agreed to hear argument on the sentencing issues left

open in the plea agreement. At the sentencing hearing, the parties limited their

arguments to the base offense level dispute. Mr. Crockett’s counsel contended

that the court should limit its consideration to possession with intent to distribute

the 994.9 grams of cocaine. But he acknowledged, “I understand what the

guidelines are” and conceded, “I don’t have any specific case law or anything

else, precedent wise, that your reading of the statute isn’t accurate.” Rec., vol. II

at 13. Neither party presented any evidence.

      The district court observed: “[N]either the Government nor the defendant

disputes the factual contents of the presentence report, nor have they filed any

objections to the presentence report,” and concluded, “therefore the factual

statements and guideline applications in the report are adopted without objection

as the Court’s findings of fact concerning sentencing.’” Rec., vol. II at 21.

      Relying on the PSR, the district court found that Mr. Crockett’s relevant

conduct included involvement with quantities exceeding four and a half kilograms

of crack cocaine. The court’s calculation, after adjustments, resulted in a total

offense level of thirty-three. With Mr. Crockett’s criminal history category of I,

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the guideline range was 135 to 168 months of imprisonment. The court sentenced

him to 135 months. This appeal followed.

      Mr. Crockett raises two issues on appeal: (1) “[w]hether due process

requires that sentencing facts be found by a higher standard than preponderance

of the evidence when the resulting enhancements substantially increase a

Guidelines sentence;” and (2) “[w]hether the sentence was entered in violation of

the Sixth Amendment, because it was predicated on essential facts found by a

preponderance of the evidence.” Aplt. Br. at 2.

      Because Mr. Crockett did not raise his objections below, we review both

issues for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th

Cir. 2005) (en banc). “Plain error review applies even if the alleged error is of

constitutional dimension.” United States v. Magallanez, 408 F.3d 672, 683 (10th

Cir. 2005) (citing Johnson v. United States, 520 U.S. 461, 466 (1997)).

“However, the plain error test is applied less rigorously in the context of alleged

constitutional error than in the context of non-constitutional error.” Id. Plain

error is “(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Gonzales-Huerta, 403 F.3d at 732.

      Mr. Crockett asserts that due process may require a higher standard of

proof in situations where the sentencing enhancement becomes the “tail which

wags the dog of the substantive offense.” Aplt. Br. at 14 (quoting States v.

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Townley, 929 F.2d 365, 369 (8th Cir. 1992) (quoting McMillan v. Pennsylvania,

477 U.S. 79, 88 (1986))). We addressed this issue in United States v. Olsen and

stated:

      [O]ur circuit has never adopted the clear and convincing standard in
      so-called disproportionate impact cases. While recognizing “strong
      arguments that relevant conduct causing a dramatic increase in
      sentence ought to be subject to a higher standard of proof,” we have
      long held that sentencing facts in the “ordinary case” need only be
      proven by a preponderance. United States v. Washington, 11 F.3d
      1510, 1516 (10th Cir. 1993); see also United States v. Frederick, 897
      F.2d 490, 492 (10th Cir. 1990); [United States v.] Crockett, 435 F.3d
      [1305,] [] 1318-19 [(10th Cir. 2006)]. Nonetheless, we have reserved
      the question of whether, in some extraordinary or dramatic case, due
      process might require a higher standard of proof. See United States
      v. Espinoza, 67 F. App’x 555, 561 (10th Cir. 2003) (unpublished)
      (characterizing United States v. Mendez-Zamora, 296 F.3d 1013
      (10th Cir. 2002), as “apparently leaving open the possibility that a
      more dramatic increase in sentence might warrant a heavier burden of
      proof”).

519 F.3d 1096, 1105 (10th Cir. 2008); see also United States v. Leifson, 568 F.3d

1215, 1219 n.2 (10th Cir. 2009); United States v. Hinson, 585 F.3d 1328, 1341

n.6 (2009) (stating that “post-Gall, [] the standard remains proof by a

preponderance of the evidence.”).

      The district court was bound by our holding in Olsen. Mr. Crockett did not

dispute the standard of proof at sentencing below, nor did he provide the district

court, or us, with any case law establishing that this is an “extraordinary or

dramatic” case. We therefore conclude that the district court’s decision to apply

the preponderance of the evidence standard of proof (assuming that this was


                                          -5-
actually the standard used) did not constitute a plain error.

      It seems that Mr. Crockett may also be claiming a violation of his Sixth

Amendment right to a jury trial based on the fact that a judge – not a jury – was

the factfinder at the sentencing stage. Assuming that is his argument, we

conclude that it lacks merit.

      Although Mr. Crockett’s failure to object to the facts in the presentence

report did not constitute a waiver of the Sixth Amendment right to have to a jury

determine beyond a reasonable doubt that he was guilty as charged, see United

States v. Bass, 411 F.3d 1198, 1204 n.7 (10th Cir. 2005), he voluntarily waived

his right to a jury trial when he pled guilty. See id. (distinguishing cases where

defendants “simply failed to object to a factual allegation in a presentence report”

from those where defendants “as part of their respective plea agreements, signaled

their intent generally to waive their constitutional rights. . . .”); United States v.

Leach, 417 F.3d 1099, 1103 (10th Cir. 2005) (“A defendant’s right to a jury trial

at sentencing, just like the right to a jury trial at the guilt-innocence phase, can be

voluntarily waived.”); see rec., vol. 1 at 303-09. Where, as here, a defendant

waives, without qualification, his right to a jury trial as a part of his plea

agreement, we have concluded that he “may not [later] assign as error the failure

of the district court to afford [him] a jury determination of facts relevant to

sentencing.” Leach, 417 F.3d at 1104. Accordingly, no error occurred when the

district court acted as the factfinder at the sentencing stage, because Mr. Crockett

                                           -6-
voluntarily waived his right to a jury trial.

      We AFFIRM.

                                                 ENTERED FOR THE COURT


                                                 Stephanie K. Seymour
                                                 Circuit Judge




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