No Booker error where judge-found sentencing fact not actually used in sentence offense level calculation

SENTENCING United States v.Serrano, No. 04-2090, ___ F.3d ___(10th Cir. May 3, 2005)(New Mexico). Appeal of conviction and sentence for possession of sawed-off shotgun and being felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1) and 26 U.S.C. § 5861(d). HELD: (1) Where sentencing guidelines required district court to calculate sentencing offense level for defendant as both an armed career criminal, and unlawfully possessing firearm and obstructing justice, and further requiring district court to use whichever offense level was greater, there was no Booker error for judge-found fact of obstruction of justice enhancement because sentence was based on armed career criminal calculation that did not include obstruction of justice finding. Accordingly, defendant failed to carry burden under third prong of plain error test of showing a reasonable probability that district court’s enhancement of his offense level for obstruction of justice affected length of his sentence. (2) Where defendant fails to meet burden of showing prejudice to substantial right under third prong of plain error test, court of appeals need not reach fourth prong (i.e., that error seriously affects fairness, integrity, or public reputation of judicial proceedings). (3) District court did not violate defendant’s Sixth Amendment right to jury trial as articulated in Booker by enhancing his sentence under Armed Career Criminal Act. Sixth Amendment as construed by Booker does not entitle defendant to have jury determine whether his prior felonies were "violent." Determination of whether given felony constitutes "violent felony" is question of law, not fact. Read the opinion here.