UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROBERT SCOTT NOVOSEL, also known as Bob Novosel, also known as Joe Novosel, also known as Bob Novosell,

Defendant - Appellant.

No. 03-4190

(D. Utah)

(D.Ct. No. 2:01-CR-507-DS)

ORDER AND JUDGMENT*

Before BRISCOE, O'BRIEN, Circuit Judges, and HEATON, District Judge.**

This panel granted appellant's Motion to Stay Mandate and Permit Supplemental briefing on February 11, 2005, and to file instanter the pleading received from appellant titled "Petition for Rehearing or Supplemental Pleading." Appellee was granted leave to file a response. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of the supplemental briefing in this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Pursuant to a plea agreement, on September 11, 2002, Novosel pled guilty to possession of a chemical (red phosphorus) used to manufacture a controlled substance (methamphetamine) and possession with intent to distribute five grams or more of actual methamphetamine. For its part, the Government agreed to recommend a three-level downward adjustment for acceptance of responsibility (USSG §3E1.1) and to file a motion pursuant to 18 U.S.C. § 3553(e) based on Novosel's substantial assistance in the prosecution of another individual. Novosel was released pending sentencing, then absconded and failed to appear at sentencing. He was apprehended four months later. Novosel eventually admitted to absconding from pretrial release supervision and failing to appear for sentencing. As a result of these admissions, the Government sought an obstruction of justice adjustment (USSG §3C1.1) and argued Novosel was no longer entitled to an acceptance of responsibility adjustment. It also informed the court it was no longer willing to file a § 3553(e) motion. After increasing the base offense level by two for obstruction of justice and denying an acceptance of responsibility adjustment, the court sentenced Novosel to 110 months imprisonment.1

Novosel appealed, alleging the Government breached the plea agreement by unilaterally declaring that his absconding violated the plea agreement, thereby relieving the Government from its plea agreement obligations. We affirmed. United States v. Novosel, 2004 WL 1406319 (10th Cir. June 24, 2004) (unpublished). Subsequently, Novosel requested rehearing en banc, which was denied on February 2, 2005. Two days later, he filed a Motion to Stay Mandate and to Permit the Filing of a Petition for Rehearing or Other Pleading in Order to Raise a Booker Claim. On February 8, 2005, Novosel filed a supplemental pleading, arguing his sentence violates the remedial holding in United States v. Booker,-- U.S.--,125 S.Ct. 738 (2005).2 On February 11, 2005, we granted Novosel's motion to stay the mandate and to file a supplemental pleading and allowed the Government thirty days in which to respond to his supplemental pleading. The Government filed its response on March 14, 2005. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. Discussion

Novosel did not raise his Booker claim in the district court.3 Thus, we review for plain error.4 United States v. Gonzalez-Huerta, 403 F.3d 727, 730 (10th Cir. 2005) (en banc). "Plain error occurs when there 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." Id. at 732. We have discretion to notice plain error. Fed. R. Crim. P. 52(b). Here, Novosel concedes he admitted to the quantity of drugs used to determine his base offense level5 and to the conduct supporting the obstruction of justice adjustment.6 However, he claims his sentence still violates Booker because he was sentenced pursuant to the mandatory guidelines. We refer to this type of error as non-
constitutional Booker error. Gonzalez-Huerta, 403 F.3d at 731-32. Applying the plain error test, we conclude Novosel cannot satisfy its fourth prong.

"Under the fourth prong of plain-error review, a court may exercise its discretion to notice a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. at 736. If "non-
constitutional Booker error" is involved, the standard for satisfying the fourth prong is "demanding"—the defendant must show that the error is "particularly egregious" and that our failure to notice it would result in a "miscarriage of justice." United States v. Dazey, 403 F.3d 1147, 1178 (10th Cir. 2005) (quotations omitted). We have recognized that in most cases involving non-constitutional Booker error the defendant will be unable to satisfy the fourth prong. See United States v. Trujillo-Terrazaz, 405 F.3d 814, 820-21 (10th Cir. 2005) (recognizing the difficulty in establishing the fourth prong in cases involving non-constitutional Booker error but finding that defendant had satisfied the fourth prong). This case is no exception.

Novosel received a sentence within the national norm as established by the guidelines and there is no mitigating evidence supporting a lower sentence. See Gonzalez-Huerta, 403 F.3d at 738-39 (considering in fourth prong analysis whether the defendant received a sentence within the guidelines/national norm and whether the record supported a lower sentence). At sentencing, the judge, in denying an acceptance of responsibility adjustment, noted: "I certainly was willing to give him acceptance previously, but the conduct following that is, I am just afraid, negated. It's tied my hands with respect to what I feel I can do for him." (R. Vol. III at 4.) He further acknowledged that he was initially disposed to helping Novosel but "his disregard or disrespect for his counsel and for the Court and the system and law enforcement, I just don't know that I feel that I can give him consideration for acceptance." (Id. at 10.) These statements demonstrate it was not the mandatory nature of the guidelines which restricted the judge from exercising any leniency, but rather, Novosel's own conduct, which included not only absconding from pretrial release supervision but fleeing when officers sought to re-apprehend him. While we recognize that the judge sentenced Novosel at the low end of the guideline range because he believed the sentence was "rather lengthy" (id.), there is no indication the judge would impose a different sentence on remand, even under a purely discretionary guideline scheme. Indeed, even on remand the district court would be required to consult the guidelines, and Novosel's behavior while on pretrial release supervision would impact any consideration of 18 U.S.C. § 3553(a)7 factors. See Booker, 125 S.Ct. at 764 ("Without the 'mandatory' provision, the [Sentencing Reform Act of 1984] nonetheless requires judges to take account of the Guidelines together with other sentencing goals" contained in 18 U.S.C. § 3553(a).).

II. Conclusion

Based on the above, we AFFIRM the judgment of the district court.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge

03-4190, United States v. Novosel

BRISCOE, Circuit Judge, dissenting:

I previously dissented from the majority's conclusions that (1) the government did not unilaterally declare that Novosel had breached the plea agreement and (2) the district court made findings that satisfied the requirements set forth in United States v. Guzman, 318 F.3d 1191 (10th Cir. 2003), i.e., "to determine whether Novosel breached the agreement and, if so, whether to release the government from its obligations and commitments." United States v. Novosel, 102 Fed. Appx. 138, 145, 2004 WL 1406319, *6 (10th Cir. June 24, 2004) (Briscoe, J., dissenting). Because I would reverse and remand for further proceedings to determine whether either Novosel or the government breached the plea agreement and what effect any such breach may have had, I would not reach the Booker sentencing error now asserted by Novosel.