F I L E D

United States Court of Appeals

Tenth Circuit

August 9, 2006
UNITED STATES COURT O F APPEALS

Elisabeth A. Shumaker
Clerk of Court

TENTH CIRCUIT

U N ITED STA TES of A M ER ICA,

Plaintiff-Appellee,
v.
ANTHON Y DELLIS SPENCER,

No. 04-4307
(D.C. No. 2:03-CR-616-01-DAK )
(D. Utah)

Defendant-Appellant.

OR D ER AND JUDGEM ENT *

Before E BE L, HOL LOW A Y and KELLY, Circuit Judges.

In this direct criminal appeal, Defendant-Appellant Anthony Spencer

challenges his 360-month sentence for conspiring to distribute methamphetamine.
The district court, in imposing that sentence, comm itted constitutional Booker 1
error when it enhanced Spencers sentence based upon two factual findings made
by the court, rather than the jury. Spencer preserved this error for review.

This Order and Judgment is not binding precedent, except under the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.
1

United States v. Booker, 543 U.S. 220 (2005).

Nevertheless, because we conclude that the error was harmless, we AFFIRM his
sentence.
I.

B ACKGR OU N D
Spencer pled guilty to conspiring to distribute m ethamphetamine, in

violation of 21 U.S.C. 846. 2 This conviction stemmed from his selling an

undercover officer four ounces, or 78.6 grams, of methamphetamine. This
transaction was arranged by a government informant.
At sentencing, the district court found, by a preponderance of the evidence,
that Spencer 1) had obstructed justice by threatening the informant and his wife;
and 2) w as a leader or organizer in this drug transaction. Based on these two
factual findings, the district court enhanced Spencers base offense level from
thirty-two to thirty-eight. 3 An offense level of thirty-eight, combined with
Spencers criminal history category of VI, produced a sentencing range of
between 360 months and life in prison. The district court imposed a sentence at
the bottom of that range, 360 months.

21 U.S.C. 846 provides that [a]ny person who attempts or conspires to

commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy. And 21 U.S.C. 841(a) makes it unlawful
. . . to distribute . . . a controlled substance. For a crime involving 78.6 grams of
methamphetamine, Spencer, who had a prior felony drug conviction, faced a
statutory maximum sentence of life imprisonment. See 21 U.S.C.
841(b)(1)(A)(viii).
3

The district court applied the 2003 sentencing guidelines.

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In light of Blakely v. W ashington, 542 U.S. 296 (2004), 4 the district court
also imposed an alternative sentence:
The Court exercises its discretion under the Statute of
Conviction, and should [B lakely] be found to impact the Federal
Sentencing Guidelines, and they should be held to be unconstitutional,
the sentence under the Statute of Conviction[] is the same sentence that
I gave under the guideline; 360 months concurrently with the other two
[sentences Spencer was already serving] and the 60 months of
supervised release.
Spencer appeals his sentence, arguing 1) the district court comm itted
constitutional Booker error by using court-found facts, made by a preponderance
of the evidence, to enhance Spencers sentence; and 2) the district courts finding
the existence of these enhancements w as clear error. Having jurisdiction to
consider this appeal under 18 U .S.C. 3742(a) and 28 U.S.C. 1291, we
AFFIRM .
II.

STANDA RD O F REVIEW
Even after Booker, this court continues to review the legal determinations

underlying a district courts sentencing decision de novo and any factual findings
for clear error. See United States v. Zunie, 444 F.3d 1230, 1236 (10th Cir. 2006).

The district court sentenced Spencer on August 16, 2004, after the
Supreme Court had decided Blakely, but before the Court decided Booker in
January 2005.
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B efore the district court, Spencer unsuccessfully objected to these two

enhancements, relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Blakely. Those objections preserved Spencers constitutional Booker argument.
See Zunie, 444 F.3d at 1237 (holding that raising Blakely argument at sentencing
preserved Booker error for appeal); United States v. Glover, 413 F.3d 1206, 1208,
1210 (10th Cir. 2005) (assuming Apprendi objection preserved Booker error for
review ). This court, therefore, will review Spencers constitutional challenge to
his sentence de novo. See United States v. Stiger, 413 F.3d 1185, 1191 (10th
Cir.), cert. denied, 126 S. Ct. 775 (2005).
III.

ANALYSIS
In Booker, the Supreme Court held that mandatory application of the

[federal sentencing] Guidelines violates the Sixth Amendment when judge-found

facts, other than those of prior convictions, are employed to enhance a sentence.
United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.) (en banc)
(citation, quotation, alteration omitted), cert. denied, 126 S. Ct. 495 (2005). In
the wake of Booker, then, there are two distinct errors that are possible:
constitutional Booker error, which involves the district court using factual
findings it made by a preponderance of the evidence to enhance the defendants
sentence; and non-constitutional Booker error, which involves the district courts
applying the federal sentencing guidelines in a mandatory manner. See
Gonzalez-Huerta, 403 F.3d at 731-32 (citations omitted).
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In this case, the district court committed constitutional Booker error when
it found, by a preponderance of the evidence, that Spencer 1) obstructed justice by
threatening the informant and his wife; and 2) was a leader or organizer of the
methamphetamine transaction; and then used these factual findings to enhance
Spencers sentence. 5 See United States v. Small, 423 F.3d 1164, 1190 (10th Cir.
2005), cert. denied, 126 S. Ct. 1180, 1377, 2050 (2006); see also United States v.
LaVallee, 439 F.3d 670, 707 (10th Cir. 2006) (recognizing that, if the sentencing
court would have applied the guidelines obstruction-of-justice enhancement to
increase defendants sentence mandatorily, it would amount to constitutional
Booker error); United States v. Lawrence, 405 F.3d 888, 905-06 (10th Cir.)
(holding that the district courts finding that the defendant was an organizer or
leader of the offense and thereby enhancing defendants sentence was
constitutional Booker error), cert. denied, 126 S. Ct. 468 (2005). This error will
require resentencing unless the Government can show, beyond a reasonable doubt,
that the error was harmless, see United States v. W aldroop, 431 F.3d 736, 743
(10th Cir. 2005); that is, that the error did not affect Spencers substantial
rights, Fed. R. Crim. P. 52(a).
[T]here are at least two ways that a defendants substantial rights may
have been affected in cases of constitutional Booker error. First, a
defendants substantial rights may be affected if a jury applying a
5

At sentencing, Spencer also challenged a third enhancement made pursuant

to U.S.S.G. 2J1.7, which increased his offense level by three. But Spencer does
not reassert that objection on appeal.
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reasonable doubt standard would not have found the same material facts
that a judge found by a preponderance of the evidence. Second, a
defendants substantial rights m ay also be affected if there is a
reasonable probability that, under the specific facts of his case as
analyzed under the sentencing factors of 18 U.S.C. 3553(a) 6 , the
district court would reasonably impose a sentence outside the
Guidelines range.
Small, 423 F.3d at 1190 & n.15 (citation, quotation omitted) (footnote, emphasis
added).
A.

W hether a jury w ould have found the same sentencing facts

beyond a reasonable doubt that the district court found by a
preponderance of the evidence.

There is overwhelming evidence in the record from which a jury would

have found both that Spencer 1) threatened the informant and his wife; and 2) was
a leader or organizer of this drug transaction. See United States v . Riccardi, 405
F.3d 852, 875-76 (10th Cir.) (concluding constitutional Booker error was
harmless w here evidence supporting sentencing facts w as overwhelming), cert.
denied, 126 S. Ct. 299, 825 (2005).

18 U.S.C. 3553(a) provides that, in imposing a sentence, the district

court should consider such things as the nature and circumstances of the offense;
the defendants history and characteristics; the need for the sentence to reflect the
seriousness of the offense; the need for deterrence, public protection and
rehabilitation; the kinds of sentences available as w ell as the applicable
sentencing guideline range; and the need to provide victims with restitution.
After Booker, the district court must consider these 18 U.S.C. 3553(a)s factors
in imposing a sentence. See United States v. M orales-Chaires, 430 F.3d 1124,
1128 (10th Cir. 2005).
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1.

O bstruction-of-justice enhancement.

The district court, pursuant to U.S.S.G. 3C1.1, enhanced Spencers

offense level by two after finding that Spencer had obstructed justice. Section
3C1.1 provides that
[i]f (A ) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to . . . the
defendants offense of conviction . . . , increase the offense level by 2
levels.
Obstruction of justice under 3C1.1 includes threatening, intimidating, or
otherwise unlawfully influencing a co-defendant [or] witness . . . , directly or
indirectly, or attempting to do so. Id. application note 4(a).
There was overwhelming evidence in the record that Spencer threatened
both the informant and his wife. The evidence presented at sentencing indicated
that the Government informant helped arrange Spencers methamphetamine sale
to an undercover officer. The informant was present when that transaction took
place. To keep Spencer from discovering the informants role, police arrested the
informant along with Spencer. At the police station, officers started to book the
informant before moving him to the jails release area. After the informant sat
in the release area for an hour, however, the guards for some reason decided not
to release him. Instead, they returned him to the jail and placed him in an area
where he and Spencer could see each other. W hile in that area, the informant saw

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Spencer make a telephone call. The informants wife testified that Spencer called
her from the jail and pretended to be a police officer asking about the informants
release; during that conversation Spencer eventually admitted who he was and
then threatened her by saying [I am] going to get you guys. After Spencer got
off the phone w ith the informants wife, Spencer told the informant that I just
called your wife, and she told me everything. Spencer then threatened the
informant directly: Im going to get you fucker. Im going to sic[] these
M exicans on you, referring to Spencers co-defendants Luis Perez and Isidro
Angel, w ho had also been involved in the methamphetamine sale.
This evidence is more than sufficient for a jury to find, beyond a reasonable
doubt, that Spencer threatened the informant and his wife. Cf. United States v.
Bradford, 423 F.3d 1149, 1161-62 (10th Cir. 2005) (reviewing constitutional
Booker error for plain error and holding evidence was sufficient for a jury to find
beyond reasonable doubt that defendant had obstructed justice). And that finding
w ould support the tw o-level obstruction-of-justice enhancement. U.S.S.G.
3C1.1, application note 4(a).
2.

Leadership enhancement.

The district court also increased Spencers offense level by four, pursuant
to U.S.S.G. 3B1.1(a), after finding that he was a leader or organizer of the
methamphetamine sale. Section 3B1.1(a) specifically provides that [i]f the
defendant was an organizer or leader of a criminal activity that involved five or
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more participants 7 or was otherwise extensive, increase [offense level] by 4

levels. (Footnote added.) In applying this enhancement, [t]he government does
not have to prove that defendant controlled five or more participants. Instead, it
must prove that five persons participated in the criminal venture, and that
Defendant exercised leadership control over at least one person. United States v.
Cruz Camacho, 137 F.3d 1220, 1224 (10th Cir. 1998) (footnote omitted)
(emphasis added).
In distinguishing a leadership or organizational role from one of mere
managem ent or supervision [for which a defendant should instead
receive only a three-level enhancement under U .S.S.G. 3B1.1(b)],
. . . [f]actors the court should consider include the exercise of decision
making authority, the nature of participation in the commission of the
offense, the recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participation in planning
or organizing the offense, the nature and scope of the illegal activity,
and the degree of control and authority exercised over others. There
can, of course, be more than one person who qualifies as a leader or an
organizer of a criminal association or conspiracy.
U.S.S.G. 3B1.1, application note 4. This four-level enhancement is appropriate
if defendant was either a leader or an organizer. United States v. Tagore, 158 F.3d
1124, 1131 (10th Cir. 1998).

The gravamen of the enhancement is either the

exercise of control over other participants or the organization of others for the
purpose of carrying out the crime. United States v. Spears, 197 F.3d 465, 469 (10th
Cir. 1999) (quotation omitted).

Spencer does not dispute that there were at least five individuals involved
in this drug transaction.
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The evidence presented at sentencing overwhelmingly established that Spencer

played a leadership or organizational role in the drug transaction. The informant
introduced the undercover officer to Spencer, and both the informant and the
undercover officer negotiated w ith Spencer to purchase methamphetamine. Spencer
eventually agreed to meet the informant and the undercover officer to conduct the
transaction. Spencer arrived at this meeting without the drugs, but accompanied by
Troy Dalton and M andi Ignatowicz. W hen the informant and the undercover officer
refused to leave with Spencer and the others to retrieve the methamphetamine,
Spencer directed Dalton and Ignatowicz to get it. And it was Spencer who gave the
officer a sample of the methamphetamine so he could determine its quality. Spencer
also told the officer that Spencer had brought Ignatowicz with him so that the officer
could have sex with her w hen the group partied after concluding the drug sale.
Dalton and Ignatowicz were gone fifteen minutes; when they returned they
were accompanied by Angel and Perez.

Spencer directed Perez to show the

undercover officer the drugs. W hen Perez did so, officers arrested everyone. The
undercover officer testified at sentencing that Spencer w as orchestrating the entire
deal.
This evidence, then, was sufficient for a jury to have found beyond a
reasonable doubt that Spencer w as a leader or organizer of this drug transaction.
Cf. United States v. Apperson, 441 F.3d 1162, 1211-12 (10th Cir. 2006)
(reviewing Booker error for plain error and holding evidence was sufficient such
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that a jury would have found, beyond a reasonable doubt, that the defendant was a
manager or supervisor of the offense).
3.

Conclusion.

There was overwhelming evidence presented at sentencing from which a

jury would have found, beyond a reasonable doubt, the same sentencing facts the
district court found by a preponderance of the evidence. 8 Therefore, the trial
courts constitutional Booker error using those two facts to enhance Spencers
sentence did not affect Spencers substantial rights.
B.

W hether there is a reasonable probability that the district court,

considering 18 U .S.C. 3553(a)s factors, w ould impose a
different sentence outside the guideline range.

The trial courts constitutional Booker error could also affect Spencers
substantial rights if there is a reasonable probability that the court, had it
considered the sentencing factors set forth in 18 U.S.C. 3553(a), would have

Because the evidence is sufficient for the jury to have found the same
sentencing facts beyond a reasonable doubt that the district court found by a
preponderance of the evidence, Spencers argument, that the district courts
factual findings were clearly erroneous, is unavailing.
Spencer further argues that, in making these factual findings, the district
court erred in relying on unreliable hearsay. Spencer appears to be referring to
the fact that, during sentencing, the prosecutor asserted that Spencers
co-defendants, in their own guilty plea and sentencing proceedings, had referred
to Spencer as their leader: [T]he fact statements given by all of those
individuals, who all had no criminal history . . . , was that they were involved
because of M r. Spencer. They did what they did because M r. Spencer told them
to. The district court, however, made clear that it was not relying on those
co-defendants statements to determine Spencers sentence.
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imposed a sentence outside the guideline range. See Small, 423 F.3d at 1190.
Ordinarily, this analysis requires us to consider what sentence the district court
would have imposed, if it had applied an appropriate post-Booker analysis. See
id. In light of the district courts alternate sentence imposed in this case,
however, there is no need for us to engage in such speculation. W e know exactly
what sentence the district court would have imposed had the court not applied the
guidelines in a mandatory manner. See United States v. Corchado, 427 F.3d 815,
821 (10th Cir. 2005), cert. denied, 126 S. Ct. 1811 (2006); United States v.
Serrano-Dominguez, 406 F.3d 1221, 1224 (10th Cir. 2005). The district court
would impose the same sentence. Therefore, we can be confident that there is no
reasonable probability that the district court, now treating the guidelines as
advisory and specifically considering 3553(a)s factors, would impose a
different sentence outside the guideline range. 9 Cf. United States v.
9

Although the district court, in imposing this alternate sentence, did not
expressly address each 3553(a) factor, this court has never required a sentencing
court to do so. See United States v. Cornelio-Pena, 435 F.3d 1279, 1289 (10th
Cir.), cert. denied, 126 S. Ct. 2366 (2006); Corchado, 427 F.3d at 821; United
States v. Rines, 419 F.3d 1104, 1107 (10th Cir. 2005), cert. denied, 126 S. Ct.
1089 (2006). In Corchado, for example, this court relied on the district courts
alternate sentence, even though the district court did not specify that it was
applying the sentencing methodology suggested in Bookernamely consultation of
the advisory Guidelines and the factors listed in 18 U.S.C. 3553(a). 427 F.3d
at 821. Nevertheless, because the district court consulted the Guidelines and
adopted the findings in the PSR, which analyzed several of the factors set forth in
3553(a), this court was confident that the district court would impose the
same sentence upon remand. Id.; see also Cornelio-Pena, 435 F.3d at 1289
(relying on an alternate sentence where the district court, in imposing that
(continued...)
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Cornelio-Pena, 435 F.3d 1279, 1289 (10th Cir.), cert. denied, 126 S. Ct. 2366
(2006) (relying on an alternate sentence to conclude that non-constitutional
Booker error was harmless); Corchado, 427 F.3d at 821 (same);
Serrano-D ominguez, 406 F.3d at 1223 (same).
If, as here, the sentencing error does not affect the sentence that would
have been imposed by the district court, it does not affect substantial rights.
United States v. M arshall, 432 F.3d 1157, 1162 (10th Cir. 2005). Therefore, the
district courts constitutional Booker error was harmless. See Zunie, 444 F.3d at
1237-38; W aldroop, 431 F.3d at 743.
IV .

C ON CLU SIO N
For these reasons, we AFFIRM Spencers 360-month sentence.

ENTERED FOR THE COURT

David M . Ebel
Circuit Judge

(...continued)
sentence, considered the guidelines, as advisory, the PSR, defendants motion for
a downward departure, and several 3553(a) factors specifically).
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