F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

August 26, 2005

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.

No. 03-2191

GERARDO RESENDIZ-PATINO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-01-1589 BB)
Submitted on the briefs:
David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United
States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.
Herman E. Ortiz, Garfield, New Mexico and Raymond P. Moore, Federal Public
Defender, and Jill M. Wichlens, Assistant Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.
Before SEYMOUR, LUCERO and OBRIEN, Circuit Judges.
OBRIEN, Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
On February 13, 2002, a jury convicted Gerardo Resendiz-Patino of
possession with intent to distribute 500 grams or more of a mixture or substance
containing a detectable amount of cocaine, in violation of 21 U.S.C. 841(a)(1).
The statutory penalty for the offense requires imprisonment for not less than five
nor more than forty years. See 21 U.S.C. 841(b)(1)(B)(ii)(II). On August 6,
2003, Resendiz-Patino was sentenced to 121 months imprisonment. He appeals,
challenging his conviction on the ground the district court committed reversible
error in admitting hearsay evidence at trial and challenging his sentence on the
ground it violates the rule announced in United States v. Booker, -- U.S. --, 125
S.Ct. 738, 746 (2005) (invalidating the federal sentencing guidelines insofar as
they are mandatory). Exercising jurisdiction under 18 U.S.C. 3742(a) and 28
U.S.C. 1291, we AFFIRM.
I.

BACKGROUND
Factual
On September 4, 2001, Resendiz-Patino, en route from Juarez, Mexico, to

Albuquerque, New Mexico, stopped at a border checkpoint near Las Cruces, New
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Mexico, and permitted authorities to search his vehicle. During the search, a drug
dog alerted to the vehicles battery. Authorities removed the battery (which was
not examined for fingerprints) and discovered 3.973 kilograms of cocaine hidden
inside it. In the vehicle, authorities discovered a wrench that fit the nuts of the
battery cables and a red felt protector for a battery cable. There appeared to be
new cables attached to the battery. Authorities also discovered that a motorcycle
battery had been wired to the vehicles battery. In the trunk, they located a set of
Craftsmen tools. Although Resendiz-Patino owned the vehicle in which he was
stopped, was traveling alone at the time and stated he was the only person who
drove or otherwise possessed the vehicle, he testified he had no knowledge of the
cocaine. He also denied ownership of the tools found in his vehicle. He shifted
responsibility for the cocaine to his girlfriend, whom he had been visiting earlier
that day in Juarez, and her cousin, who occasionally performed mechanical work
on Resendiz-Patinos vehicle.
Procedural
The Presentence Investigation Report (PIR) 1 calculated a base offense level
of 30 based on Resendiz-Patinos relevant conduct. 2 See USSG 2D1.1(c)(5)
The PIR utilized the November 2001 edition of the United States
Sentencing Commissions Guidelines Manual. Unless noted otherwise, all
references to the guidelines are to this edition.
1

Types and quantities of drugs not specified in the count of conviction

may be considered in determining the offense level. See 1B1.3(a)(2) (Relevant
2

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(providing for a base offense level of 30 when offense involves at least 3.5
kilograms but less than 5 kilograms of cocaine). It also recommended a two level
enhancement for obstruction of justice on the ground Resendiz-Patino testified
falsely at trial. See USSG 3C1.1. With a total offense level of 32 and a criminal
history category of I, the applicable sentencing range was 121 to 151 months
imprisonment. The district court found Resendiz-Patino possessed 3.88 kilograms
of cocaine 3 and obstructed justice by his testimony at trial. It sentenced
Conduct). USSG 2D1.1, comment. (n.12). USSG 1B1.3(a) provides in part:
Unless otherwise specified, (i) the base offense level where the
guideline specifies more than one base offense level . . . shall be
determined on the basis of the following:
(1)

(A)

all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully
caused by the defendant . . .

that occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense;
(2)

solely with respect to offenses of a character for which

3D1.2(d)
would require grouping of multiple counts, all acts and
omissions described in subdivision[] (1)(A) . . . above that
were part of the same course of conduct or common scheme or
plan as the offense of conviction[.]

The parties stipulated at trial that 3.973 kilograms of a mixture or

substance containing a detectable amount of cocaine was seized from the battery
in Resendiz-Patinos vehicle. The PIR indicated likewise. The record is unclear
why the court at sentencing found the amount to be 3.88 kilograms. Inasmuch as
USSG 2D1.1(c)(5) provides for a base offense level of 30 when the offense
3

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Resendiz-Patino to 121 months imprisonment, the low end of the applicable

guideline range.
II.

DISCUSSION
Hearsay Objection
When the authorities removed the battery containing the cocaine from

Resendiz-Patinos vehicle, they made no effort to examine it for latent

fingerprints, even though the hard plastic sheath for the battery was a surface
from which fingerprints might have been obtained. The case agent testified at
trial on redirect examination that one reason he did not submit the battery sheath
for fingerprint analysis was that other agents had informed him in the past that
oftentimes the fingerprints on containers of controlled substances are smudged
and unidentifiable:
Q.

Are you saying that the DEA [Drug Enforcement Agency] task
force never submits packaging or wrappings for fingerprinting
to the South Central Lab?

A.

No. I said I never have.

Q.

Are you aware whether attempts have been made in other cases
from the DEA task force?

A.

Yes.

involves at least 3.5 kilograms but less than 5 kilograms of cocaine, the disparity
between the stipulation and the PIR calculation, on the one hand, and the courts
finding, on the other hand, is immaterial.
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Q.

Do you know of any times when fingerprints have come back?

A.

No. In my experience, from my talking to other agents,

theyve . . . .
MR. HARRIS:

Objection, Your Honor. Hes

testifying to hearsay.

THE COURT:

No, overruled. Go ahead.

A.

Theyve told me that prints have come back inconclusive.

Q.

Its hard to get a full print that you can actually categorize?

A.

Yes.

Q.

You get smudges or parts of prints?

A.

Yes.

(R. Vol. III at 136-37.) Resendiz-Patino contends the agents testimony as to

what other agents had told him about obtaining fingerprints from drug packaging
or wrappings was inadmissable hearsay, and it was an abuse of discretion and
reversible error for the court to admit it.
Hearsay, defined by F ED . R. E VID . 801(c) as a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted[,] is generally inadmissible. See F ED . R.
E VID . 802. However,
[e]videntiary rulings are committed to the discretion of the trial court
and are reviewed only for abuse of discretion. While we review
evidentiary rulings by considering the record as a whole, deference to
the trial judge is heightened when reviewing rulings on hearsay
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questions. This court applies a harmless error standard when

reviewing trial courts' rulings on hearsay objections resting solely on
the Federal Rules of Evidence. A harmless error is one that does not
have a substantial influence on the outcome of the trial; nor does it
leave one in grave doubt as to whether it had such effect.
United States v. Jones, 44 F.3d 860, 873 (10th Cir. 1995) (internal citations
omitted). See also F ED . R. C RIM . P. 52(a) (Any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.). We avoid
deciding whether or not the challenged testimony was hearsay and whether the
district court abused its discretion in admitting it, because the error in admitting
it, if any, was harmless.
The gist of Resendiz-Patinos defense was that he was unaware of the
presence of cocaine in his vehicles battery. See 21 U.S.C. 841(a)(1) (requiring
knowing or intentional possession to sustain conviction). Had the jury believed
him, he would have been acquitted. It did not. Without the case agents
objected-to explanation for his failure to submit the battery sheath for fingerprint
analysis, the jury would have been left with three equally plausible inferences that
could be drawn from the evidence: 1) there were no recoverable fingerprints on
the battery sheath; 2) there were recoverable fingerprints on the battery sheath
that belonged to Resendiz-Patino; or 3) there were recoverable fingerprints on the
battery sheath that did not belong to Resendiz-Patino.
The first inference is benign and would not have had any influence on the
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outcome of the trial. The second inference would not have lessened (and indeed
would have added to) the otherwise overwhelming evidence of Resendiz-Patinos
guilt. The third inference would not have eliminated the possibility that
Resendiz-Patino was in league with another person or persons in cocaine
trafficking. 4 On the basis of the foregoing, we conclude the case agents
explanation for his failure to submit the battery sheath for fingerprint analysis did
not have a substantial influence on the outcome of the trial. Therefore, the
admission of the explanation, if error, was harmless.
Sentence
In Booker, the Court invalidated the federal sentencing guidelines insofar
as they were mandatory. 125 S.Ct. at 746. The Court held 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. Id. at 756. The Court concluded the guidelines would not offend the
Constitution if advisory only. Id. at 749-50. To this end, in the remedial portion
of its opinion, the Court excised those provisions mandating application of the
guidelines. Id. at 756-57. The Court indicated its decision was applicable to all
Perhaps this is why defense counsel did not argue in closing argument that
the failure to examine the battery sheath for fingerprints tended to establish
Resendiz-Patinos innocence.
4

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cases, like this one, on direct review. Id. at 769.

Applying Booker, we have stated:
there are two distinct types of error that a court sentencing prior to
Booker could make. First, a court could err by relying upon
judge-found facts, other than those of prior convictions, to enhance a
defendant's sentence mandatorily. As Booker makes clear, the Sixth
Amendment prohibits this practice. As a matter of convenience, we
will refer to such an error as a constitutional Booker error. Second, a
sentencing court could err by applying the Guidelines in a mandatory
fashion, as opposed to a discretionary fashion, even though the
resulting sentence was calculated solely upon facts that were
admitted by the defendant, found by the jury, or based upon the fact
of a prior conviction. While this type of sentence does not violate
the Sixth Amendment, such a sentence is nonetheless impermissible
because the Court severed the portion of the Sentencing Reform Act
that required the mandatory application of the Guidelines. We will
refer to this second type of error as a non-constitutional Booker error.
United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en
banc) (internal quotation marks and citations omitted). Irrespective of the type of
error involved, Booker does not necessitate a remand for resentencing in all
instances. Instead, reviewing courts [are] to apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below and whether it fails
the plain-error test. Booker, 125 S.Ct. at 769 (internal quotation marks omitted).
We must first determine whether we face constitutional or nonconstitutional Booker error. In this case, the record reflects the court found the
facts necessary to support the relevant conduct drug quantity determination, see
USSG 2D1.1(c)(5) (providing for a base offense level of 30 when offense
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involves at least 3.5 kilograms but less than 5 kilograms of cocaine), and the
obstruction of justice enhancement. See USSG 3C1.1 (providing a two level
enhancement for obstruction of justice). The Government concedes this is
constitutional Booker error. The Government is too quick to concede the point,
and we disregard its concession. See United States v. Harrold, 796 F.2d 1275,
1279 (10th Cir. 1986) (we may disregard ill-considered Government concession
of constitutional error).
The record demonstrates Resendiz-Patino stipulated at trial that 3.973
kilograms of a mixture or substance containing a detectable amount of cocaine
was seized from the battery in his vehicle. The contested issue at trial was
possession, not quantity. For Booker purposes, Resendiz-Patinos stipulation at
trial constituted an admission to the quantity of cocaine involved in his offense.
In light of this admission, the district courts relevant conduct quantity
determination was superfluous, and Bookers constitutional holding was not
implicated. See Booker, 125 S.Ct. at 756.
Nor did the district courts imposition of the obstruction of justice
enhancement contravene Bookers constitutional holding. This is so because,
without the two-level enhancement for obstruction of justice, Resendiz-Patinos
total offense level would have been 30. Together with a criminal history category
of I, this would have resulted in a sentencing range of 97 to 121 months
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imprisonment. Inasmuch as Resendiz-Patino was sentenced to 121 months

imprisonment, there was no constitutional Booker error in the obstruction of
justice enhancement. See United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir.
2005) (en banc) (Booker made clear that it is the actual sentence, not the
sentencing range, that must not be increased based upon judge-found facts in
order to violate the Sixth Amendment[.]). Based on the foregoing, we conclude
there was only non-constitutional Booker error in Resendiz-Patinos sentence due
to the fact he was sentenced under a mandatory guidelines regime.
Resendiz-Patino concedes he did not interpose a Booker objection at
sentencing and our review is for plain error. 5 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. Gonzalez-Huerta, 403 F.3d at 732 (internal quotation marks
omitted). We enjoy discretion to notice plain error. See F ED . R. C RIM . P. 52(b).
In this case, there is no doubt there is error that is plain, and, as a result, the first
two prongs of the plain error test are satisfied. See United States v. Clifton, 406
F.3d 1173, 1181 (10th Cir. 2005) (Non-constitutional and constitutional Booker
Resendiz-Patino contends his sentencing under a mandatory guidelines
scheme amounts to structural error. We have held otherwise. See United States v.
Dowlin, 408 F.3d 647, 668 (10th Cir. 2005) (constitutional Booker error is not
structural); Gonzalez-Huerta, 403 F.3d at 734 (non-constitutional Booker error is
not structural).
5

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errors satisfy the first two prongs of the plain-error test.). We thus limit our
review to the third and fourth prongs of the plain error test.
Satisfying the third prong of plain-error review--that the error affects
substantial rights--usually means that the error must have affected the outcome of
the district court proceedings. Gonzalez-Huerta, 403 F.3d at 732 (internal
quotation marks omitted). To meet this burden, the appellant must show a
reasonable probability that, but for the error claimed, the result of the proceeding
would have been different. Id. (internal quotation marks omitted). We avoid
determining whether Resendez-Patino satisfies the third prong of the plain error
test and proceed directly to a determination of whether he has satisfied the fourth
prong of the test. See id. at 736 (no need to determine if third prong of plain
error test is satisfied if, assuming it is, fourth prong of test is not satisfied).
Under the fourth prong of plain-error review, . . . we will not notice a
non-constitutional [Booker] error . . . unless it is both particularly egregious and
our failure to notice the error would result in a miscarriage of justice. Id.
(internal quotation marks omitted). Resendiz-Patino bears the burden of meeting
this demanding standard. See id. at 737. For several reasons, we determine he
has not satisfied it. First, the error is not of constitutional dimension but only
violates the remedial portion of Booker. See id. at 738 ([T]he District Court's
erroneous--although not constitutionally erroneous--mandatory application of the
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Guidelines is not particularly egregious or a miscarriage of justice.). Second,

Resendiz-Patinos sentence is within the national norm for sentences as
established by the sentencing guidelines. See id. (Even though district courts
now have discretion in sentencing, they must consider the Guidelines (i.e., the
national norm) when sentencing.). Finally, there is no evidence in the record
that would lead us to reasonably conclude the district court would impose a
sentence outside the guideline range under a post-Booker advisory regime. 6 See
Relieved of the mandatory application of the guidelines by Booker, district
courts are now permitted to give more sway in sentencing to the factors
enumerated in 18 U.S.C. 3553(a). See Booker, 125 S.Ct. at 757.
6

Section 3553(a) provides:

Factors to be considered in imposing sentence. The court shall
impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to be
imposed, shall consider
(1)

the nature and circumstances of the offense and

the history and characteristics of the defendant;

(2)

the need for the sentence imposed

(A)

to reflect the seriousness of the offense, to

promote respect for the law, and to provide
just punishment for the offense;

(B)

to afford adequate deterrence to criminal

conduct;

(C)

to protect the public from further crimes of the

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id. at 738-39. The courts comments in declaring sentence evidence the contrary:
You know, I would feel much more charitable toward you if I could believe any
part of your story, which I dont. (R. Supp. Vol. II at 12.) Therefore, we
conclude Resendiz-Patino has failed to satisfy the plain error test for nonconstitutional Booker error.

defendant; and
(D)

to provide the defendant with needed educational

or vocational training, medical care, or other
correctional treatment in the most effective
manner;

(3)

the kinds of sentences available;

(4)

the kinds of sentence and the sentencing range

established for
(A)

(5)

the applicable category of offense committed by

the applicable category of defendant as set forth in
the guidelines . . . .

any pertinent policy statement

(A)

issued by the Sentencing Commission . . . .

(6)

the need to avoid unwarranted sentence disparities

among defendants with similar records who have been
found guilty of similar conduct; and

(7)

the need to provide restitution to any victims of the

offense.

18 U.S.C. 3553(a).
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III.

CONCLUSION
We AFFIRM the judgment of the district court.

Judge Lucero concurs in the result.

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