After Booker, appellate review of sentencing continues to encompass review of interpretation and application of federal guidelines

APPEAL/SENTENCING United States v. Graham, No. 04-8008, ___ F.3d ___ (10th Cir. Jul. 1, 2005)(Wyoming). Appeal of sentence for conviction of interstate travel for purpose of engaging in sexual act with person under sixteen years of age in violation of 18 U.S.C. § 2423(b). HELD: (1) Despite United States v. Booker’s invalidation of mandatory nature of federal sentencing guidelines, district court must still consult guidelines and take them into account when sentencing. Thus, appellate review continues to encompass review of district court’s interpretation and application of guidelines. (2) Judicial fact-finding of defendant’s intent to engage in sexual act with seven year old child did not affect defendant’s substantial rights under plain error test. Therefore, Booker error (i.e., use of judge-found facts at sentencing) is not noticeable plain error. Read the opinion here.