United States v. Yazzie

on the sub- ERISA’s remedial scheme liability dependent tive is also evidences Con- ERISA, gress’s policy and under these circum- choices and intent to provide stance of stances, clearly only the state-law claim “relates the remedies it specified, Aetna Inc., preemption. conflict plan triggering to” the Health S.Ct. at and this However, claims can also serve derivative not in a position second-guess is to than provide to additional remedies those Congress simply the facts of a because ERISA, falling thus within recognized particular might sympathetic. case be preemption. scope complete 3.) Supplemental Deposition Here, preemption both ERISA doc- plan’s argument action The final implicated. trines are The direct is that an in supporting liability refusing vicarious is ERISA district court erred to consider fiduciary duty supplemental claim for breach of asserted it deposition op- offered Simper’s Obviously However, estate. against position summary judgment. regulates relationship given disposition this claim be- our of the merits of the entities, plan ruling, unnecessary which means the de- district court’s it tween is depends regula- claim also on the address this issue. rivative entity a plan relationship, tion of thus Conclusion

triggering preemption. ERISA conflict Regulation fiduciary duties is also one Regarding grant the district court’s subjects primary of the of ERISA’s civil summary judgment in favor of defendants scheme, triggers enforcement which com- Benefits, Ted Madsen and Flexible AF- noted, plete preemption. previously As part, FIRM in in part, REVERSE completely preempted claim that is be- proceedings light REMAND for further claim, comes a federal but here that is not Likewise, opinion. regarding possible. only pro- The remedies ERISA grant summary judg- district court’s fiduciary duty vides for breach of are to ment in favor of defendants KCL and Sun- liable, fiduciary personally hold the or to set, part, AFFIRM in wé REVERSE equitable seek other appropriate relief. part, proceed- and REMAND for further 1132(a)(3). 1109(a), By §§ 29 U.S.C. ings light opinion. of this claiming that KCL and Sunset are vicari- actions,

ously Simper’s liable -for Mr.

plan attempting is to hold non-fiduciaries Thus,

personally liable. the claim is and it

preempted cannot be recast be- comparable cause there is no federal America, UNITED STATES claim. Plaintiff-Appellee, plan argues this is not an appropriate result it left because without YAZZIE, Defendant-Appellant. Gerald First, remedy. given analysis our of the No. 04-2152. claim, plan’s negligent supervision this is entirely important, true. But more Appeals, United States Court of availability remedy of a under ERISA Tenth Circuit. preemption analysis. is not relevant to the May Okla., v. Group Cannon Health Serv. of Inc., (10th Cir.1996). reiterated, Supreme recently

As the Court Goodman, Depart-

Nina United States Justice, Division, ment of Criminal Wash- (David ington, Iglesias, D.C. C. Attorney, NM; Albuquerque, Nor- Cairns, man Assistant United States At- NM; torney, Albuquerque, her briefs), for appearing Plaintiff-Appellee. Finley, Finley, Charles R. & Warner NM, for Albuquerque, appearing Defen- dant-Appellant. TACHA, Judge,

Before Chief Circuit EBEL, KELLY, HENRY, SEYMOUR, BRISCOE, LUCERO, MURPHY, HARTZ, O’BRIEN, McCONNELL, and TYMKOVICH, Judges. Circuit TACHA, Judge. Chief Circuit ap Yazzie Defendant-Appellant Gerald peals conviction and sentence for sexu his ally assaulting person age under the the District twelve. He contends motion to with denying Court erred in that he should be guilty plea draw his and light of United States resentenced Booker, U.S. -, 125 S.Ct. (2005). hold that the Dis L.Ed.2d 621 We discretion in trict Court did not abuse its denying guilty plea. of the the withdrawal review, hold, plain-error We also under meaning appli- control” within District Court’s -the 2A3.1(b)(3)(A). Sentencing Guidelines cation of the U.S. 3553(b)(2), while pursuant to 18 U.S.C. The two-level enhancement increased erroneous, Therefore, is not reversible.. Mr. Yazzie’s offense level from 31 to jurisdiction take under 28 U.S.C. history placed his criminal him in 3742(a)(1) AF- § 1291 and 18 U.S.C. History Category I. This combi- Criminal FIRM. yielded sentencing range nation 168 months’ incarceration. See U.S.S.G. I. BACKGROUND Ch.5, Pt.A. Under the non-enhanced girl- live-in Mr. Yazzie ordered .his.. range, Mr. Yazzie could have been sen- juve- daughter, who is an Indian friend’s tenced to 108 to 135 months. The District twelve, age perform to nile under the sentenced him to 135 months —a Court 13, 2002, a on him. On November fellatio ranges. sentence that falls within both grand jury charged in Mexico Mr. New timely Mr. Yazzie appealed. sexually single

Yazzie with a count of as- juvenile was less saulting an Indian who THE PLEA II. WITHDRAWAL OF years than old violation twelve initially Yazzie’s We address Mr. 1153(a). U.S,C. §.2241(c).and 18 U.S.C. claim that erred in de the District Court guilty later to the pleaded Yazzie Mr. guilty him to his nying leave withdraw charge. plea. a defendant moves to with When charged pleaded and Before he was guilty plea prior sentencing, draw a to the however, guilty, Mr. Yazzie confessed to court must assess whether there is a “fair explained the FBI. As more detail be- just in light and reason for withdrawal” low, Yazzie later recanted his admis- Mr. following factors: guilt moved to his sions withdraw (1) whether the has asserted defendant The District Court denied this mo- plea. (2) innocence; whether withdrawal his tion. (3) government; prejudice would At the court concluded that sentencing, delayed filing whether the defendant care, “custody, supervi or Mr. Yazzie had motion, so, and if the reason for the his sory applied over the victim and control” (4) delay; whether withdrawal would n two-level enhancement under United court; substantially inconvenience the Sentencing States Guidelines (5) whether close assistance of counsel (2003) (“U.S.S.G.” (6) defendant; was available to the . “Guidelines”) Mr. Yazzie maintained that knowing plea whether the was and vol- girl custody in his at time was not (7) untary; and whether the withdrawal spent because she her af this offense judicial would waste resources. ineluding the afternoon when ternoons— Sandoval, 390 F.3d sister’s this offense occurred —at his (10th Cir.2004) (quotation marks house, supervision. her Nonethe under omitted). the district court’s “We review less, that Mr. Yazzie also stated he lived guilty of a motion to withdraw a denial mother, and her that the victim for an plea abuse of discretion.” United stepfather, him that called her victim Jones, authority disciplinary he had over her. Cir.1999). concluded, based on District Court admissions, attempted the victim in Mr. to withdraw his these Yazzie care, “custody, hearing at a on December supervisory plea Mr. Yazzie’s for cause it would be difficult Mr. Yaz- hearing, testifying at While testify long FBI. so after the to the victim to confessions his zie recanted in- to occurred. originally had confessed offense Yazzie fellatio, but perform the victim to structing (3) court said it was delay—The the por- disavowed hearing he during pro- “how late in the “troubled]” indicating confession of his written tion matter has been as- ceedings this per- force to physical that he had used serted.” to do He claimed the victim so. suade (4) court—The inconvenience during his a statement he never made such weight attached little to this court FBI, that he never- with the but interview factor. detail his written included this theless (5) assistance counsel—The close him to. agent FBI told when an statement said, “I have seen Mr. Finzel’s hearing, howev- during the same Later provided that he has assistance drank er, testified that he Mr. Yazzie clients, and have heard what he and that day of the offense heavily on the case, in this and the thor- has done about whatsoever he had no recollection in which communicated ough way he him and the victim. between what occurred pros the and to the defendant what Then, giving that testimo- a moment after plea agree- a accepting cons were of effectively guilt his Mr. Yazzie denied ny, ment, going to trial.” never told maintaining that he altogether, (6) plea court voluntariness the of —The act on perform any to sexual the victim choice to concluded that Mr. Yazzie’s he explained Yazzie then him. Mr. knowing guilty plea a was “a enter FBI, .and subse- his confession to the gave voluntary decision.” and FBI pleaded guilty, because quently (7) judicial resources —The waste of him persuaded and defense counsel agents weight little to this court attached believe, claims of his nobody would factor. prompted de- innocence. assertion This. Finzel, counsel, to ask the court findings, Mr. the court denied fense Based on these Mr. Yazzie and lawyer plea. a new for to withdraw his appoint Mr. Yazzie’s motion plea. withdraw his Mr. Yazzie to allow Court, Mr. Yazzie chal this Before granted Mr. Finzel’s The District Court findings. lenges all of the District Court’s request appointed and substitute first however, is to the challenge, primary His Yazzie, the new attor- for Mr. counsel initial confession and of his voluntariness Yaz- to withdraw Mr. ney filed a motion claims that he was plea. Mr. Yazzie guilty the court made hearing, After a plea. zie’s because the pleading guilty into coerced to the findings respect following from an unlawful-confession FBI secured factors listed above: that no Finzel told him him and then Mr. - (1) innocence—The assertion of inno accept protestations his jury would incon- length record, at some

discussed reviewing the Upon cence. among Mr. Yazzie’s state- sup sistencies not does conclude that the evidence expressly evaluate ments but did Finzel coercion. Mr. this claim of port credibility any of these state- hearing— plea withdrawal at the testified ments. and Mr. he contradiction —that without Yazzie’s thoroughly reviewed Mr. (2) Yazzie government to the prejudice —The of at including possibility signifi- options, for potential court found Yazzie’s confession to have Mr. tempting government to the be- prejudice cant S.Ct, Moreover, -, Mr. Yazzie has suppressed. 160 L.Ed.2d 381 125. (2004). op- prong plain never denied that he understood these We consider each plea. at time he his Un- error turn. tions entered circumstances, light and in der these A. Error under oath that Mr. Yazzie’s declaration plea voluntarily be- entering he was recently explained As we in Gonza actually guilty, lez-Huerta, we hold that cause he was categories Booker created two did not abuse its error, District Court discre- of error. The first is constitutional denying tion in Mr. Yazzie’s motion to ap which occurs when the district court Jones, at plea. withdraw his See plies in mandatory the Guidelines fash (other ion, findings makes factual than the convictions),

fact of prior imposes sentence above the maximum that would III. SENTENCING ERROR apply in findings. the absence of such Yazzie also contends that the Gonzalez-Huerta, 403 F.3d at 731. Mr. plain District Court committed error under that, Booker, in light Yazzie contends it by enhancing Booker his sentence based was constitutional error for the District judicial upon fact-finding. finding Court to apply higher range Guidelines question Mr. Yazzie had care and —that judge-found based fact that on.the he had custody in a over the victim—resulted two- custody and care over the pursuant victim level increase in Mr. Yazzie’s offense level. 2A3.1(b)(3)(A).2 to U.S.S.G. dis We 2A3.1(b)(3)(A). Although See U.S.S.G. agree. object sufficiency Mr. Yazzie did below, objection grounds evidence Booker made clear that it is the sentence, the District Court’s enhancement does not actual sentencing range, not the sufficiently preserve that his claimed Booker must not be upon increased based Duncan, errors. United States v. 400 judge-found facts in order to violate the (11th Cir.2005) 1297, F.3d 1301 (holding “Accordingly, Sixth Amendment: we reaf raising sufficiency that of the evidence firm our holding Apprendi: Any as fact (other conviction) pre to a Guidelines enhancement does not prior than a which is error).1 result, serve Booker necessary support As exceeding sentence appellate claim be plain must reviewed for the maximum by authorized the facts es Gonzalez-Huerta, error. v. by United States tablished plea guilty jury or a (10th Cir.2005) (en banc). 727, 403 F.3d by 732 verdict must be admitted the defendant (1) error, “Plain error occurs when proved jury beyond there is to a a reasonable (2) (3) Booker, that plain, is which affects substan (empha doubt.” 125 S.Ct. at 756 (4) added). rights, case, seriously which affects sis In this if the tial U.S.S.G. fairness, 2A3.1(b)(3) integrity, § public reputation enhancement had been omit judicial proceedings.” United States v. ted from the court’s computa Guidelines (10th Cir.) 1174, tions, Burbage, 365 F.3d causing 1180 reduction Mr. Yazzie’s — omitted), denied, (quotation 31, cert. U.S. offense level from 33 to the applicable holding previ- agrees 1. Our here does not disturb our 2. The Government with Mr. Yazzie ruling objecting ous to an enhancement face a constitutional error here. Nonetheless, grounds sufficiently pre- by parties' on Sixth Amendment we are not bound stipulations regarding serves non-constitutional Booker error. See an error of law. Koch Interior, Labastida-Segura, Dept. United States v. 396 F.3d v. United States 47 F.3d 1140, (10th 1015, Cir.2005). (10th Cir.1995). 1142-43 1018

1145 defendant, by jury, or based found 108 to the have been range would sentencing Ch.5, prior fact of a conviction” would upon Pt.A. months.3 See sentence —a a 135-month such a sentence. Gonzalez-Huer- support received Yazzie could im ta, District Court that the at 732. The Court Supreme sentence 403 F.3d §a making pose advisory by without excis- rendered Guidelines Therefore, constitutional 3553(b)(1) enhancement. § from the Sen- ing 18 U.S.C. in this case. See not committed error was Booker, 125 Act of 1984. tencing Reform Payton, v. 405 F.3d United Here, Mr. Yazzie at 764. because S.Ct. Cir.2005) (10th (holding a Booker against crime an convicted of a sexual was no constitution was challenge “[t]here 3553(b)(2), § minor 18 Indian U.S.C. [, .... sentencing [defendant] al error in 3553(b)(1), governing sentencing § finding that court’s district t]he because Court, however, did The Booker statute.4 did not increase firearms possessed she 3553(b)(2) § must not determine whether maximum author beyond the her sentence remedy the Guide- be excised in order judicially found by plea.... her ized Amendment viola- underlying lines’ Sixth therefore,] constitutionally facts[, had no reasoning, we Applying Booker’s tions. sen impact [defendant’s] significant well. that it must be excised as hold tence.”); O’Flanagan, 339 (hold Cir.2003) 1229, 1232 n. 2 F.3d 3553(b)(2) contains Section raise a could not ing that the defendant that made impose” language same “shall Jersey, 530 Apprendi under v. New claim of the Guidelines application 147 L.Ed.2d 120 S.Ct. U.S. 3553(b)(1).5 textu § Because of this under (2000) to Book an antecedent — which 3553(b)(2) similarity, sentencing under al not exceed his sentence did er—because con Amendment raises the same Sixth maximum). statutory the relevant Supreme Court remedied cerns that the 3553(b)(1). Booker, striking See error,, type of Booker The second Accordingly, we conclude at 764. error, S.Ct. occurs non-constitutional Booker requires excising that Booker also treats whenever the district 3553(b)(2). Sharp United States See mandatory rather than advi as Guidelines (2d Cir.2005) 127 n. 3 ley, , determining the defendant’s sen sory in 123 dicta, suspect that that the (stating, in “we though based] the “calculat[ion tence even failure to excise the en- Court’s by Supreme admitted solely upon facts that were victim, involving a minor under section 1201 of derived from base 3. The offense level 31 shall, abuse, impose enhanced of the level of 27 for sexual ... the court sentence offense kind, was by because the victim less range, four levels [the referred and within the years at the time of the of- than twelve old mitigating cir- guidelines] unless enumerated (b)(2)(A). 2A3.1(a), § fense. See added); exist.”) (emphasis cumstances support necessary to the base of- The facts 3553(b)(1) ("[T]he § court shall im- 18 U.S.C. § enhance- and the fense level kind, within the pose of the a sentence charged in the indictment ment were guidelines] range, unless [the referred to in guilty plea. part as of Mr. Yazzie's admitted aggrava- exists an the court finds that there kind, ting mitigating of a or circumstance 3553(b)(2), than 4. rather Section adequately consid- degree, taken into to a not 3553(b)(1), chap- applies under § to offenses by Sentencing Commission in for- eration guilty pleaded to violat- Mr. Yazzie ters 109A. mulating guidelines should result in 2241(c), § offense ing which is an 18 U.S.C. described.”) (em- different from that sentence chapter 109A. under added). phasis 3553(b)(2) (“In sen- Compare 18 U.S.C. an offense tencing a convicted of defendant 1146 3553(b) error, simply was an not notice a

tirety of Section non-constitutional such Therefore, we oversight.”)-6 us, hold as the one the case before unless it treating the as particularly egregious Guidelines is both and our-fail- —re- gardless of is sen- whether ure to notice the error would in a result defendant 3553(b)(1) tenced under or miscarriage justice.” 403 F.3d at 736 3553(b)(2) omitted). error. (quotation marks Mr. Yazzie —is demonstrating bears the burden of B. Plain the error in this case satisfies this de- error, Having found must deter- we now manding standard. Id. We hold that he plain. mine the error is As we whether has not met this burden. Gonzalez-Huerta, explained in “an error is only argument by forwarded ‘plain’if it is clear or obvious at the time of Yazzie is citation to United States v. appeal, and Booker renders the error Cir.2005). Hughes, 396 F.3d appeal.” here both clear and obvious on previously rejected We this same argu (internal omitted). at 732 citation Gonzalez-Huerta, ment as insufficient reasons, For the same we hold that noting that “[p]roviding quotation is a “plain” error in this case is as well. cry establishing far from that a miscar justice riage of would if occur do not and, Integrity C. Fairness Judicial remand.” F.3d at 737. We also noted Proceedings that, on panel re-hearing, the Fourth Cir Next we our turn attention- to the cuit fourth-prong analysis, issued new prongs plain-error third and re fourth “ which on ‘Hughes relies the fact that view. the third prong plain- Under to a of imprisonment sentenced term near review, error Mr. Yazzie has “the burden ly long four times as as the maximum Court, to convince this based on record ” jury sentence authorized verdict.’ appeal, that the error affected his sub Id. at 737 n. (quoting Nevertheless, rights.” stantial Id. at 733. (4th Cir.2005)). Hughes, 401 F.3d third-prong we need conduct this anal updated analysis The Fourth Circuit’s eyen ysis here assuming because Mr. Yaz inapplicable conclude, therefore, here. We zie established that rights his substantial that Mr. Yazzie does not meet his fourth- affected, were we hold that Mr. Yazzie prong burden. satisfy prong plain- does not the fourth (i.e., Moreover, error review that failure to correct reviewing the indepen- record seriously dently, this forfeited error would affect support we find no for Mr. Yazzie’s fairness, integrity, public reputation prong contention that the fourth is satis- judicial proceedings). See at 736 fied. id. When faced with non-constitutional (declining error, to a substantial-rights conduct Booker we in held Gonzalez-Huerta analysis because defendant could not satis the “fourth prong plain-error of re- review). fy prong plain-error only the fourth of in view rare cases in [is] [met] those Gonzalez-Huerta, in justice As we stated “we will which core notions of are offended.” 3553(b)(1), § applicable sentencing Mr. Yazzie’s offense occurred before the stat- 3553(b)(2) § was enacted. Because we 3553(b)(2), hold prior § ute to the enactment of reasoning that the Court's in Booker excises event, 3553(b)(2). any § rather than In we 3553(b)(2), mandatory application § the we provision need not determine the which court any post need not address ex facto concerns applied, because we hold that the Moreover, here. the record is not clear application of either sub-section is error. applied whether the District Court 2A3.1(b)(3)(A) judicially- § on the recently decided one of basis Id. at 739. We view, my found facts. In the record in cases,” in we held that “rare which these ap- case establishes that the district court the defen- prong was met when the fourth § plied enhancement case that ob- compelling “presents dant 3553(a) own factual findings, the basis its § fac- of the jective consideration rather on basis of Mr. Yazzie’s but departure, perhaps and tors warrants key of certain As a re- admission facts. from the sentence significant departure, sult, imposed the enhancement was not in by the Guidelines.” suggested violation of Mr. Yazzie’s Sixth Amendment Trujillo-Terrazas, rights. Cir.2005). 2A3.1(b)(3) Sentencing Section of the Affirming Mr. Yazzie’s sentence does Guidelines mandates a two-level enhance- justice. notions of Because not offend core involving ment for a crime criminal sexual already has considered the District Court the victim ... custo- abuse “[i]f 3553(a) factors, § rejected many of the and care, dy, supervisory or control of the de- a case like presented we are not Application fendant....” Note of the Trujillo-Terrazas consideration which Commentary to 2A3.1 outlines the broad significant de- of these factors warrants scope of this enhancement:' See imposed. parture from the sentence (b)(8), pertains as it to a hold that Subsection R. Yol. 7 at 37-38. We therefore care, custody, superviso- victim the or satisfy prong fourth Mr. Yazzie fails to defendant, ry control of the is intended not met plain error because he has his application broad to be have allowing burden to demonstrate that applied whenever the victim is entrusted particularly is either sentence stand defendant, temporarily to the whether or constitutes a mis- egregious otherwise teachers, fairness, permanently. example, For justice such that the carriage day providers, baby-sitters, care or oth- judicial integrity, public reputation temporary among er caretakers are proceedings would be undermined. subject who to this en- those would be IV. CONCLUSION determining hancement. In whether to enhancement, apply this We hold that the District Court did not relationship should look to the actual denying Mr. Yaz- abuse its discretion that existéd between the defendant plea. motion to withdraw his We also zie’s simply legal to the the victim and not hold that Yazzie’s non-constitutional status of the defendant-victim relation- Booker challenge satisfy plain- does not ship. reasons, foregoing error For the review. comment., See 2A3.1, App. AF- judgment of the District Court is Note 2. FIRMED. 2A3.1(b)(3)(A), In the district applying

BRISCOE, J., concurring. two-step process. in a engage court must First, majority that must the district court must assess agree I with the relationship between judgment of the district court. nature of the the vic- affirm the so, however, doing In I tim and the defendant. separately, I because dis- write (a) rely can facts admitted majority’s analysis of Mr. district court agree with the defendant, (b) factual find- by its own Yazzie’s claim that the district court violat- the (c) of the two.’ In rights by ings, or a combination ed his Amendment enhanc- Sixth words, may may or step other this first ing pursuant his sentence 1148 judicial fact-finding part of clarifying Regi

involve on the sist in the law. See Salve Second, Russell, College 225, 233, court. the district na v. the district 499 U.S. (1991). 1217, determine the court must then whether S.Ct. 113 L.Ed.2d 190 Thus, underlying regarding relationship apply the facts de novo standard of and the victim are that between the defendant review to determination. See Har they satisfy dridge, the broad definition such that 379 F.3d at 1192. care, “custody, supervisory

of control” Although principles these do not come (A).1 (b)(3) § outlined in 2A3.1 (since directly play into Mr. Yazzie has turn, not, scope appellate In of our re- arguments, the aside from his Booker 2A3.1(b)(3)(A) § hinges part challenged view on which of the district the enhance 2A3.1(b)(3)(A) § application appeal), they court’s of is at ment on are nevertheless Obviously, any findings factual in demonstrating why issue. useful there was no by regarding made a district court the A Sixth Amendment violation this case.. relationship nature of the between the vic- review of the record in this case indicates tim would be during and the defendant reviewed that Yazzie testified under oath the 3, by and, this court for clear error. See United 2003 sentencing hearing December Doe, 1254, F.3d by prosecu States v. under cross-examination the Cir.2005) (“When (a) tion, reviewing a district admitted that he had lived with application Sentencing court’s the victim and her mother since the victim Guidelines, (b) any old, ... factual approximately years we review find- was four error”). However, (c) ings for clear whether victim him stepfather, called her he underlying scope facts fall within the disciplinary authority had over the victim. 2A3.1(b)(3)(A) ROA, question §of ais mixed Vol. at 26-27. It not appear does primarily fact that any law and involves “the that the district court made additional i.e., legal principles,” findings consideration of factual regarding relationship care, meaning “custody, Instead, or supervisory between Yazzie and the victim. 2A3.1(b)(3)(A). § control” as utilized in only the district court utilized those facts (cor Hardridge, by determining admitted Yazzie in (10th Cir.2004). Moreover, view) my the deter- rectly the relationship given mination of whether a set of facts between Yazzie and the victim fell within 2A3.1(b)(3)(A). Thus, victim scope establishes that a the “custo- be care, 2133.1(a)(3) dy, or supervisory control” of a de- cause the enhancement was purposes fendant for upon any judicial is not based fact-findings, just easily by one that can be made as simply this there was no Sixth Amendment court, violation, i.e., court as district and one in no constitutional Booker err — Booker, appellate which an determination will as- or.2 See United States v. example, question 1. For if a defendant convicted of of whether a constitutional Booker court, criminal sexual abuse were to admit that he applying error occurs when district student, was a teacher and the victim was his fashion, the Guidelines in a in- required would district court be to deter- sentencing range creases defendant’s on the mine, given language Application Note judicially-found Although basis of facts. care, “custody, that the victim was in the majority’s Payton, citation to United supervisory control" of the for defendant (10th Cir.2005), implies 405 F.3d 1168 2A3.1(b)(3). of§ purposes decided, question already this has been n By erroneously concluding simply Payton, not the case. In court 2.- that the district only held that non-constitutional Booker error engaged judicial fact-finding, the ma- imposes does not occur when a district court jority in turn forces resolution of the difficult argument appeal on he would have U.S. -, 160 L.Ed.2d 125 S.Ct. (2005) influence the district court’s dis- (noting that a defendant’s Sixth made to jury any find right cretion, to have a Amendment I would conclude that the record is impli punishment “is to his prej- fact essential in this that Yazzie was not clear case impose a judge seeks cated whenever that he udiced. Further demonstrating solely not based on facts that is sentence prejudiced, Judge was not as Briscoe notes by or admitted jury in the verdict reflected concurrence, Yazzie made' statements defendant.”) (internal quotations omit that could be construed as admissions ted). challenged en- supporting the facts I hancement. For these reasons concur remaining argument is Mr. only judgment. the district Yazzie’s assertion error Booker committed non-constitutional Sentencing Guidelines applying fashion, clearly claim that any of the within encompassed

was not

objections that asserted to his sentence he In of this court’s recent deci- light

below. Gonzalez-Huerta, v.

sion in United States (10th Cir.2005), agree I 403 F.3d CENTOBIE, Petitioner- Mario G. no basis for majority that there is Appellant, under the relief on this issue granting plain error framework. v. Commissioner, CAMPBELL, Donal

LUCERO, concurring. Judge, Circuit Department Alabama of Correc- For the rea- judgment. I concur in the tions, Respondent-Appellee. my stated in dissent United sons Gonzalez-Huerta, 727, 761 No. 05-12333. Cir.2005) (en banc) (Lucero, J., dis- of Appeals, Court United States majority’s I senting), disagree with Eleventh Circuit. prongs of analysis on the third and fourth Ordinarily, plain-error test. the Olano April re- sentences should be plainly erroneous court for the limited manded to the district the defen- determining whether

purpose However, some prejudiced.

dant was that the defendant was

cases are so clear district court’s sen- prejudiced by they any necessity of bypass

tence that Because

remanding to the district court. court in this case denied

the district rejected departure,

motion for downward to the

mitigating evidence relevant 3553(a) factors, expressed its view serious, quite

the crime committed an present Yazzie does not

and because applicable to her offense. statutory tence minimum sen- defendant

Case Details

Case Name: United States v. Yazzie

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 20, 2005

Citation: 407 F.3d 1139

Docket Number: 04-2152

Court Abbreviation: 10th Cir.