United States v. Roman-Roman , 172 F. App'x 811 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 27, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 03-3276
v. (D.C. No. 02-CR-40127-01-SAC)
(D. Kan.)
ALFREDO ROMAN-ROMAN,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, SEYMOUR, and PORFILIO, Circuit Judges.
Alfredo Roman-Roman pled guilty to conspiracy drug charges in violation
of 21 U.S.C. § 846, 841(b)(1)(A) and 18 U.S.C. § 2. On direct appeal, we
affirmed the district court’s denial of Mr. Roman-Roman’s motion to suppress
evidence obtained from a search of his rented vehicle after a traffic stop. United
States v. Roman-Roman, 116 Fed. Appx. 994 (10th Cir. Dec. 6, 2004). The
*
This order and judgment is not binding precedent, except under the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.
Supreme Court summarily vacated the judgment in Mr. Roman-Roman’s case and
remanded for further consideration of his sentence in light of United States v.
Booker, 543 U.S. 220 (2005). See Roman-Roman v. United States, 126 S. Ct. 410(2005). Having reviewed the parties’ supplemental briefs, we reinstate our prior
order and judgment and affirm Mr. Roman-Roman’s sentence.
Mr. Roman-Roman pled guilty to “conspiracy to possess with intent to
distribute in excess of 30 kilograms of a substance or mixture of substances
containing a detectable amount of methamphetamine.” Aplt. App. at 164. He
did, however, preserve his right to appeal the suppression issues in his case. The
plea agreement contained a narrative agreed to by both parties detailing the facts
surrounding Mr. Roman-Roman’s arrest and eventual guilty plea. Id. at 165. The
narrative stated that Mr. Roman-Roman was stopped by the police while riding as
a passenger in a rented van, after which, he and the driver consented to a search
of the vehicle. The search resulted in the discovery of sixty-nine pounds
of methamphetamine. Id. at 166.
After Mr. Roman-Roman entered his plea, a pre-sentence report (PSR) was
prepared by the United States Probation Office. That report fully detailed the
facts surrounding Mr. Roman-Roman’s offense, including that he was found in
possession of 30.7 kilograms of methamphetamine. Rec., vol. II at 6-8. The PSR
recommended a base offense level of 38. The report also recommended that three
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levels be subtracted for acceptance of responsibility under U.S.S.G. § 3E1.1, and
an additional two levels for application of the safety valve provision under
U.S.S.G. § 5C1.2. Rec., vol. II at 9-10. These calculations resulted in a total
offense level of 33, which coupled with Mr. Roman-Roman’s criminal history
category of I, yielded a sentencing range of 135-168 months. Id. at 15. Mr.
Roman-Roman did not object to the PSR. Nor did he object when the district
court sentenced him to 135 months. He did not appeal his sentence, challenging
only the district court’s denial of his motion to suppress the evidence found in his
vehicle.
In Booker, the Supreme Court ruled 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, 543 U.S. at 244. The ruling in Booker applies to all cases on direct
review. Id. at 268. Where, as here, no Booker errors were raised below, we
review for plain error. See United States v. Gonzalez-Huerta, 403 F.3d 727, 732
(10th Cir. 2005). “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. (quoting United
States v. Burbage, 365 F.3d 1174, 1180 (10th Cir. 2004)). Mr. Roman-Roman is
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unable to satisfy this standard.
Our court has identified two different types of sentencing errors under
Booker. Constitutional Booker error arises where the court bases a sentence on
judge-found facts. Non-constitutional Booker error occurs where the court
applies the guidelines in a mandatory fashion. See id. at 731-32. Constitutional
Booker error did not occur in this case because the district court, in sentencing
Mr. Roman-Roman, did not rely on judge-found facts to increase his sentence.
Instead, his sentence was based entirely on his admission that he possessed more
than thirty kilograms of a substance containing methamphetamine. His guilty plea
detailed this fact, and he raised no objections to the PSR reciting the same.
This case does present non-constitutional Booker error because the district
court applied the guidelines in a mandatory fashion when it sentenced Mr.
Roman-Roman. Where non-constitutional Booker error is involved, the first two
prongs of the plain error analysis are met. See United States v. Clifton, 406 F.3d
1173, 1181 (10th Cir. 2005). Even if Mr. Roman-Roman could satisfy the third
prong of the plain error test, however, we are not convinced he satisfies the final
prong. See Gonzalez-Huerta, 403 F.3d at 736 (court need not decide third prong
of plain error test where defendant cannot satisfy final portion of test). Under the
fourth prong of plain error review, we will exercise our discretion to notice an
error only if “it seriously affects the fairness, integrity, or public reputation of
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judicial proceedings.” Id. The error must be both particularly egregious and
result in a miscarriage of justice if we decline to notice it. Id.Mr. Roman-Roman does not make any substantial argument as to why the
district court’s error in his case satisfies this high standard. At most, he asserts
the conclusory allegation that because he received a reduction under the safety
valve provision, mitigating factors existed in his case which could have resulted
in a lower sentence, therefore casting the reputation of the district court
proceedings in doubt. He fails, however, to point to anything in the record to
indicate what specific factors would result in the district court imposing a lower
sentence on remand.
In short, this is a “run of the mill case with non-constitutional Booker
error.” United States v. Trujillo-Terrazas, 405 F.3d 814, 820 (10th Cir. 2005).
Mr. Roman-Roman pled guilty, he received a sentence at the low end of the
guideline range which was calculated without any Sixth Amendment violation,
and “there is no reason to suppose,” id., nor has Mr. Roman-Roman presented
sufficient argument to cause us to doubt, that his “sentence is anything but fair
and reasonable.” Id. Mr. Roman-Roman has thus failed to show how the instant
error “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Gonzales-Huerta, 403 F.3d at 736. Accordingly, he cannot satisfy
the plain error test, and we must affirm his sentence.
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We REINSTATE our prior order and judgment affirming Mr. Roman-
Roman’s conviction and, after consideration in light of Booker, we AFFIRM his
sentence.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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