Sentence affirmed despite constitutional Booker error affecting substantial rights

SENTENCING United States v. Mozee, No. 04-8015, ___ F.3d ___ (10th Cir. Apr. 27, 2005)(Wyoming). Appeal of sentence for being felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). HELD: Under plain error analysis, where district court commits constitutional Booker error and defendant proves error affected substantial rights, court of appeals will normally exercise discretion to correct error. However, court of appeals need not exercise that discretion where remand for resentencing would not advance fairness, integrity, or public reputation of courts. Specifically, in this case, while district court committed plain error and that error affected defendant’s substantial rights, by choosing to sentence defendant to top end of 100-120 month range calculated under then mandatory pre-Booker sentencing guidelines, district court chose to maximize punishment rather than exercise leniency where it had discretion to do so. Therefore, there is no reason to assume now that defendant would receive lesser sentence on remand under post-Booker discretionary scheme. Accordingly, remand for resentencing would not advance fairness, integrity, or public reputation of courts and court of appeals need not exercise discretion to correct sentencing error. Read the opinion here.