UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 04-6347
v.	(W. D. of Okla.)
RAVON LARNELL PATTERSON,

Defendant-Appellant.	(D.C. No. CR-04-39-H)

ORDER AND JUDGMENT*

Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.**

RaVon Patterson appeals the 105-month sentence he received after pleading guilty to armed bank robbery. He argues that the district court committed reversible error by enhancing his sentence under the United States Sentencing Guidelines. The government responds that Patterson waived his right to demand a jury under United States v. Booker, 543 U.S. 220 (2005), when he pled guilty and that any resulting sentencing error was harmless. We agree with the government and AFFIRM.

I. Background

Patterson pled guilty in the Western District of Oklahoma to bank robbery. The factual basis for that plea was set forth in the plea agreement:

That on or about February 3, 2004, [Patterson] took money from the person or presence of a bank teller; that he did so using force, violence, and intimidation; that the money was under the care, custody, control, management and possession of MidFirst Bank . . . ; [and] that the deposits of MidFirst Bank were then insured by the Federal Deposit Insurance Corporation.

Vol. 1, Doc. 49, Pg. 2. During the plea colloquy, Patterson further explained that he entered the bank with an accomplice and yelled for everybody to get down. He also admitted two additional facts: (1) his accomplice did not say anything to the people in the bank, and (2) the pair left with $568.

Prior to sentencing, a Presentence Investigation Report (PSR) calculated Patterson's sentence under the Guidelines. The PSR began with a base offense level of 20, which was then enhanced two levels for taking property of a financial institution. See USSG § 2B3.1(a), (b)(1). The PSR also reported that Patterson's codefendant, Jesse Shaw, had hit the bank manager in the face, knocking out teeth, and included a four-level enhancement for "serious bodily injury." See id. § 2B3.1(b)(3)(B). With a three-level reduction for acceptance of responsibility, the PSR recommended a total offense level of 23. Combined with Patterson's Category V criminal history, this offense level yielded a guideline range of 84 to 105 months.

Patterson objected to this analysis based on Blakely v. Washington, 542 U.S. 296 (2004), which was decided in June 2004, just two days after his guilty plea. Patterson asked to continue his sentencing hearing until after the Supreme Court issued an opinion in then-pending Booker, but the court denied this request and sentenced Patterson on October 15, 2004.

At that hearing, the court heard testimony from the bank manager, describing his injuries, and rejected Patterson's Blakely argument that the Guidelines should not apply to his case. Following the calculation set forth in the PSR, the court sentenced Patterson to 105 months in prison, the high end of the guideline range. Although the court recognized Patterson's "commitment to turning around his life," it concluded the sentence was appropriate in light of Patterson's recent, substantial criminal record that reflected "an ongoing level of serious criminal activity." Vol. II, Pg. 23.

II. Analysis

Patterson claims on appeal that the district court violated the Sixth Amendment by enhancing his sentence under mandatory sentencing guidelines. The Supreme Court in Booker, held that the mandatory application of sentencing enhancements under the Guidelines violated a defendant's Sixth Amendment right to a jury trial. 543 U.S. at 229. Although this situation did not arise in every case, the Supreme Court imposed a sweeping remedy that made the Guidelines advisory in all criminal cases, including those pending on appeal. Id. at 268. Subsequent to Booker, we, like many other circuits, recognized that defendants on appeal could raise constitutional and nonconstitutional challenges to a sentence based on the mandatory application of the Guidelines. United States v. Gonzalez-
Huerta, 403 F.3d 727, 731 (10th Cir. 2005).

Because the district court enhanced Patterson's sentence based on facts not found by a jury or admitted in the plea agreement, he raises both constitutional and nonconstitutional claims. With respect to the former, the government responds that Patterson waived his Sixth Amendment right to a jury trial at sentencing when he pled guilty to the offense, so he should not be allowed to raise a Sixth Amendment challenge on appeal. We agree.

We recently held that where a defendant "waive[s], without qualification, [his] right to a jury trial in [his] guilty plea, . . . [he] may not [on appeal] assign as error the failure of the district court to afford [him] a jury determination of facts relevant to sentencing." United States v. Leach, 417 F.3d 1099, 1104 (10th Cir. 2005). Here, Patterson waived in writing and in open court his right to a jury trial, with a waiver almost identical to the defendant's in Leach.1 Thus, we must conclude on this authority that Patterson waived his right to have a jury determine sentencing facts under a mandatory guideline scheme.

This conclusion does not end the analysis because the waiver does not include a waiver of Patterson's right to be sentenced under an advisory guideline regime. The government effectively concedes this argument, responding instead that the error was harmless. Indeed, where a defendant raised a Blakely argument below, as here, we review alleged Booker errors for harmlessness. United States v. Marshall, 432 F.3d 1157, 1160 (10th Cir. 2005). "In non-constitutional harmless error cases, the government bears the burden of demonstrating, by a preponderance of the evidence, that the substantial rights of the defendant were not affected." Id. at 1162 (quotations omitted). However, "[a]n error with respect to sentencing does not affect substantial rights when it did not affect the sentence imposed by the district court." United States v. Ollson, 413 F.3d 1119, 1120 (10th Cir. 2005). We have repeatedly held that the government satisfies this burden where the district court sentences at or near the top of the guideline range. See, e.g., United States v. Paxton, 422 F.3d 1203, 1207–8 (10th Cir. 2005); United States v. Riccardi, 405 F.3d 852, 876 (10th Cir. 2005).

Here, the district court concluded the guideline range was 84 to 105 months. Although it could have imposed a lower sentence, it exercised its discretion to impose the maximum sentence it could: 105 months. Where the judge "exercised his limited discretion under the pre-Booker system to give [the defendant] the highest permissible sentence, there is no reason to think the judge would exercise his now-greater discretion to reduce the sentence." Riccardi, 405 F.3d at 876. Thus, we conclude that the nonconstitutional Booker error in this case was harmless.

CONCLUSION

For these reasons, we AFFIRM.

Entered for the court

Timothy M. Tymkovich

Circuit Judge