FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 19, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-7060
          v.                                           (E.D. Oklahoma)
 KENNETH LEE KELLEY,                          (D.C. No. 6:03-CR-00051-JHP-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, McWILLIAMS, and GORSUCH, Circuit Judges.



I. Introduction

      The district court sentenced Kenneth Lee Kelley prior to the Supreme

Court’s decision in United States v. Booker, 

(2005). Kelley argues

the district court erred in sentencing him based on a mandatory application of the

Sentencing Guidelines. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, the

court AFFIRMS Kelley’s sentence.




      *
        This order and judgment is not binding precedent except under the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.
II. Background

      In January 2004, Kelley pleaded guilty to ten of the eleven counts in a

superseding indictment. 1 He was sentenced in April 2004 as a career offender

pursuant to USSG § 4B1.1(a) due to two prior felony convictions involving

controlled substances. The applicable Guidelines range was calculated as 352 to

425 months. Trial counsel did not object to the PSR and simply requested a

sentence at the bottom of the Guidelines range. Ultimately, the district court

imposed a within-Guidelines sentence of 360 months’ imprisonment. Kelley did

not file a direct appeal.

      Kelley timely filed a motion under 28 U.S.C. § 2255 claiming his attorney

was constitutionally ineffective for ignoring Kelley’s request to appeal the

sentence. United States v. Kelley, 318 Fed. App’x 682, 684 (10th Cir. Mar. 30,

2009) (unpublished). The district court denied the motion on three separate

occasions; each time this court reversed the district court and remanded for

further proceedings. 

Ultimately, this court concluded Kelley was

prejudiced by trial counsel’s ineffectiveness. 

Accordingly, we

instructed the district court “to reinstate the judgment so that Mr. Kelley [could]

file a timely appeal of his sentence.” 

court did so and reimposed

the exact same sentence without further comment. Kelley now appeals his

sentence in light of Booker.

      1
          The Government agreed to dismiss the remaining count.

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III. Discussion

      Kelley alleges a non-constitutional Booker error and argues his sentence

was improperly based on a mandatory application of the Sentencing Guidelines.

As Kelley’s trial counsel failed to object to the court’s application of the

Sentencing Guidelines as mandatory, his claim is reviewed for plain error. United

States v. Gonzalez-Huerta, 

, 732 (10th Cir. 2005) (en banc). To

establish plain error, Kelley must demonstrate “(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.” 

Kelley is able to satisfy the first two prongs of this test because it is clear the

district court simply reimposed Kelley’s original sentence, which was based on a

mandatory application of the Sentencing Guidelines, an error which is “plain” on

direct appeal. See 

      Kelley cannot, however, meet his burden of demonstrating his substantial

rights were affected. In order to satisfy this prong of the plain-error analysis, he

must establish “a reasonable probability that, but for the error claimed, the result

of the proceeding would have been different.” 

(quotation omitted). In

United States v. Paxton, this court explained that a non-constitutional Booker

error does not affect a defendant’s substantial rights “[w]hen the district court had

undoubted discretion to reduce the sentence below what it imposed” but elected




                                          -3-
not to do so. 

, 1207 (10th Cir. 2005) (quotation omitted). 2 See also

United States v. Lawrence, 

, 908 (10th Cir. 2005) (affirming a

sentence challenged for constitutional Booker error because the district judge’s

decision to sentence the defendant above the bottom of the Guidelines range

indicated the court would not have imposed a lesser sentence had it known the

Guidelines were advisory).

      Here, Kelley was sentenced to 360 months’ imprisonment, eight months

above the bottom of the Guidelines range of 352 to 425 months. While the

district court could have imposed a lesser sentence, even though it viewed the

Guidelines as mandatory, it opted not to do so. As we noted in Gonzalez-Huerta,

“even prior to Booker, [a defendant] had every reason to present mitigating

sentencing factors” in order to obtain the lowest possible sentence within the

applicable Guidelines 

. Despite counsel’s request for a

sentence at the bottom of the Guidelines range, however, the court imposed a

sentence of 360 months, explaining it was doing so “to provide just punishment,

to promote respect for the law and to protect the public.” Consequently, Kelley

cannot meet his burden of showing a reasonable probability that the proceedings


      2
       Paxton analyzed this question in the context of harmless-error review,
where it is the Government’s burden to establish the defendant’s substantial rights
have not been affected. This court, however, has noted that aside from a shift in
the burden of proof, the substantial rights inquiry is essentially the same whether
conducted under a harmless error or plain error standard of review. United States
v. Small, 

, 1190 n.15 (10th Cir. 2005).

                                        -4-
would have produced a different result had the district court known the

Guidelines were advisory. Accordingly, this court must affirm the district court’s

decision.

IV. Conclusion

      For these reasons, the court hereby AFFIRMS Kelley’s sentence.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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