Claim of Booker error may be resolved solely on third prong of plain error test if record shows error did not affect substantial rights

SENTENCING United States v. Ambort, No. 03-4243, ___ F.3d ___ (10th Cir. May 3, 2005)(Utah). Appeal of conviction and sentence for conspiracy to defraud United States by assisting in preparation of false tax returns in violation of 18 U.S.C. § 371 and 26 U.S.C. § 7206(2). HELD: (1) Where defendant challenged evidentiary basis for judge-found sentencing facts during sentencing proceeding, but did not argue that use of sentencing guidelines violated Constitution, defendant failed to raise Booker error below. Accordingly, on appeal, claim of Booker error must be evaluated for plain error. (2) At sentencing where judge announced finding on dollar amount of loss attributable to defendant, but offered to recess proceeding to allow further investigation into that amount, defendant’s refusal of recess offer constituted concession of loss thereby rendering judge-found loss amount an admitted fact. Because sentence enhancement was based on admitted fact, defendant’s sentence did not violate Booker. (3) Where judge-found sentencing facts (i.e., leader-organizer, sophisticated means) were based on trial evidence, and defendant failed to show that jury evaluating same evidence and applying reasonable doubt standard would not have found same material facts as judge, defendant failed to establish prejudice to substantial rights sufficient to meet third prong of plain error test. (4) While it is not necessary to address third prong of plain error test if court concludes that defendant could not satisfy fourth prong of showing that alleged Booker error seriously affected fairness, integrity, or public reputation of judicial proceedings, there is no reason not to resolve case on third prong if record makes clear that defendant failed to meet his burden of showing substantial rights were affected. Read the opinion here.