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    United States v. Standridge, 10th Cir. (2005)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wesley Dean Standridge. It summarizes that Mr. Standridge pled guilty to felon in possession of a firearm and possessing an unregistered firearm. He appealed his conviction on Fourth Amendment grounds, which was affirmed, but the Supreme Court later vacated the judgment and remanded the case for consideration in light of United States v. Booker. The Tenth Circuit agrees the district court committed non-constitutional error by applying the Sentencing Guidelines mandatorily, but finds this did not affect Mr. Standridge's substantial rights because there is no indication the court would have imposed a lesser sentence with discretion. Therefore,

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    United States v. Standridge, 10th Cir. (2005)

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wesley Dean Standridge. It summarizes that Mr. Standridge pled guilty to felon in possession of a firearm and possessing an unregistered firearm. He appealed his conviction on Fourth Amendment grounds, which was affirmed, but the Supreme Court later vacated the judgment and remanded the case for consideration in light of United States v. Booker. The Tenth Circuit agrees the district court committed non-constitutional error by applying the Sentencing Guidelines mandatorily, but finds this did not affect Mr. Standridge's substantial rights because there is no indication the court would have imposed a lesser sentence with discretion. Therefore,

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    Filed: 2005-10-18 Precedential Status: Non-Precedential Docket: 04-5066

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    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wesley Dean Standridge. It summarizes that Mr. Standridge pled guilty to felon in possession of a firearm and possessing an unregistered firearm. He appealed his conviction on Fourth Amendment grounds, which was affirmed, but the Supreme Court later vacated the judgment and remanded the case for consideration in light of United States v. Booker. The Tenth Circuit agrees the district court committed non-constitutional error by applying the Sentencing Guidelines mandatorily, but finds this did not affect Mr. Standridge's substantial rights because there is no indication the court would have imposed a lesser sentence with discretion. Therefore,

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
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    19 views4 pages

    United States v. Standridge, 10th Cir. (2005)

    Uploaded by

    Scribd Government Docs
    This document is a court order from the United States Court of Appeals for the Tenth Circuit regarding the sentencing of Wesley Dean Standridge. It summarizes that Mr. Standridge pled guilty to felon in possession of a firearm and possessing an unregistered firearm. He appealed his conviction on Fourth Amendment grounds, which was affirmed, but the Supreme Court later vacated the judgment and remanded the case for consideration in light of United States v. Booker. The Tenth Circuit agrees the district court committed non-constitutional error by applying the Sentencing Guidelines mandatorily, but finds this did not affect Mr. Standridge's substantial rights because there is no indication the court would have imposed a lesser sentence with discretion. Therefore,

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    October 18, 2005


    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 04-5066
    (D.C. No. 03-CR-67-K)

    WESLEY DEAN STANDRIDGE,

    (N.D. Okla.)

    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously to honor the parties request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
    oral argument.
    Defendant pled guilty to being a felon in possession of a firearm in
    violation of 18 U.S.C. 922(g), and to possessing an unregistered firearm in
    violation of 26 U.S.C. 5861(d). The district court then sentenced Defendant to
    thirty-eight months imprisonment.
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    Initially, Defendant appealed his conviction to this court on Fourth


    Amendment grounds. We previously affirmed the district courts judgment and
    sentence on that issue. United States v. Standridge, No. 04-5066, 2004 WL
    2944161, at *3 (10th Cir. Dec. 21, 2004). Subsequently, Defendant petitioned the
    United States Supreme Court for a writ of certiorari. After granting Defendants
    cert petition, the Supreme Court vacated the judgment and remanded the case to
    this court for further consideration in light of its holding in United States v.
    Booker, __U.S.__, 125 S. Ct. 738 (2005) (holding that the mandatory application
    of the United States Sentencing Guidelines violates a Defendants Sixth
    Amendment rights). Standridge v. United States, __U.S.__, 125 S. Ct. 1962
    (2005).
    Consistent with the directive given to us by the Supreme Court, we ordered
    supplemental briefing from the parties regarding sentencing. In his supplemental
    brief, Defendant challenges his sentence as being imposed in violation of his
    constitutional rights, as articulated in Booker. Because Defendant did not raise
    this issue to the district court, we review for plain error. United States v.
    Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (citations
    omitted). Under that standard, we will only reverse Defendants sentence if
    Defendant can prove that the sentence imposed was (1) error, (2) which is plain,
    (3) which affects his substantial rights, and which (4) seriously affects the
    -2-

    fairness, integrity or public reputation of the judicial proceedings. Id. (quotation


    omitted).
    We have recognized two types of Booker errorsconstitutional and nonconstitutional. Id. at 731-32. In this appeal, Defendant claims that the district
    court committed non-constitutional error when it applied the United States
    Sentencing Guidelines (Guidelines) in a mandatory fashion at sentencing.
    We agree with the parties that the district courts mandatory application of
    the Guidelines was plain error, thereby satisfying the first two prongs of
    plain-error review. See id. We must therefore consider whether Defendant has
    satisfied the third and/or fourth prongs of plain-error review.
    In this case, the district court, after reviewing the presentence report and
    applying the Guidelines enhancement, determined that Defendants Guidelines
    imprisonment range was from thirty-seven to forty-six months. After making this
    determination, the sentencing court decided to impose a sentence of thirty-eight
    months, between the low end and the middle of the Guidelines range. Supp.
    Rec., Vol. 1, Sent. Tr. at 5. Based on this sentence, there is no reason to believe
    that the district court would have imposed a less severe sentence with its new
    post-Booker discretion. See United States v. Riccardi, 405 F.3d 852, 876 (10th
    Cir. 2005) (denying defendant relief even when applying the less rigorous
    harmless error test). The fact that the district court judge did not impose a
    -3-

    sentence at the bottom of the Guidelines range indicates that there is no


    reasonable probability that the court would reduce Defendants sentence on
    remand post-Booker. See id. (Having exercised his limited discretion under the
    pre-Booker system to give [Defendant] the highest permissible sentence, there is
    no reason to think the judge would exercise his now-greater discretion to reduce
    the sentence.) (citation omitted). Also, there are no remarks in the record which
    demonstrate that the thirty-eight-month sentence was inappropriate in light of all
    the circumstances. See id. Thus, Defendant fails to satisfy the third prong of the
    plain error test. Having determined as much, we need not address whether
    Defendant meets the fourth prong of the plain error test. See United States v.
    Dowlin, 408 F.3d 647, 671 (10th Cir. 2005) (explaining that a partys failure to
    meet one prong of the test is a sufficient reason not to notice plain error).
    Accordingly, even though Defendants sentence was imposed in violation
    of the Sixth Amendment standards set forth in Booker, the error did not violate
    Defendants substantial rights and must be disregarded. We AFFIRM
    Defendants sentence and REINSTATE all non-sentencing portions of our
    previous opinion.
    Entered for the Court
    Monroe G. McKay
    Circuit Judge
    -4-

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