United States v. Jenkins , 226 F. App'x 832 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 19, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-7015
(E.D. Okla.)
RO GER FOY JEN KINS, (D.Ct. No. CR -04-063-P)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of 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.
Roger Foy Jenkins appeals from his sentence. He claims the district court
improperly applied the federal sentencing guidelines but failed to provide a
proper record for our review. Lacking the ability to assess the issues presented,
*
This order and judgment is not binding precedent except under the doctrines of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
we dismiss the appeal.
Background
Following three controlled buys of methamphetamine, Jenkins was charged
with, and subsequently pled guilty to, possession of methamphetamine with intent
to distribute in violation of 21 U .S.C. § 841(a)(1) and (b)(1)(B)(viii). At
sentencing, Jenkins objected to the amount of methamphetamine listed as “actual”
in the pre-sentence report. The district court overruled the objection, finding by a
preponderance of the evidence that the amount of pure methamphetamine listed in
the government’s lab reports w as appropriately used in the pre-sentence report to
determine Jenkins’s sentencing range under the guidelines.
Analysis
Jenkins challenges the district court’s classification of the
methamphetamine as “actual,” instead of a “mixture.” W e decline to consider this
issue because Jenkins has failed to present a proper record on appeal. Jenkins has
not provided the pre-sentence report (PSR ) or a transcript of the sentencing
hearing. Both of these documents are necessary for us to review Jenkins’s claims,
as they are the official record of the district court’s holdings. Jenkins has only
provided the clerk’s minutes, which are not sufficiently detailed to support his
claims. “Th[is] court need not remedy any failure by counsel to designate an
adequate record. W hen the party asserting an issue fails to provide a record
sufficient for considering that issue, the court may decline to consider it.” 10th
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Cir. R. 10.3(B); see also United States v. Rodriguez-Felix, 450 F.3d 1117, 1132
(10th Cir.) (applying 10th Cir. R. 10.3(B) and declining to consider defendant’s
claim where defendant did not include PSR objections in the record on appeal),
cert. denied, 127 S.Ct. 420 (2006).
Jenkins also suggests the district court erred under United States v. Booker,
543 U.S. 220 (2005). If the district court applied the guidelines as advisory, there
can be no Booker error. United States v. Visinaiz, 428 F.3d 1300, 1315 (10th Cir.
2005) (“[B]ecause the district court did not consider the guidelines mandatory,
there was no Booker error, constitutional or non-constitutional.”), cert. denied,
126 S.Ct. 1101 (2006). Since Jenkins has not provided a transcript of the
sentencing hearing he cannot, in good faith, say the district court applied the
guidelines other than in an advisory fashion. Therefore, we also decline to
consider this issue. See 10th Cir. R. 10.3(B) (2007).
DISM ISSED.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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