Williams argues the district court erred in refusing to give his requested "theory of defense" instruction on "fleeting possession" of the firearm. "'A criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law.'" United States v. Alcorn, 329 F.3d 759, 767 (10th Cir. 2003) (quoting United States v. Haney, 318 F.3d 1161, 1163 (10th Cir. 2003) (en banc)). Such an instruction is not required, however, "'if it would simply give the jury a clearer understanding of the issues.'" Id. (quoting United States v. Wolny, 133 F.3d 758, 765 (10th Cir. 1998)). Furthermore, a theory of defense instruction is "'required only if, without the instruction, the district court's instructions were erroneous or inadequate.'" Id. (quoting Wolny, 133 F.3d at 765). "'We review de novo whether a district court committed reversible error in failing to submit a requested theory of defense instruction.'" Id. at 765 (quoting United States v. Bindley, 157 F.3d 1235, 1241 (10th Cir. 1998)).⁽⁷⁾

Williams proposed the following instruction on fleeting possession: "Momentary, transitory, or temporary control of a thing, without criminal intent, is not possession. Mere proximity to a thing is not possession." Defendant's Proposed Jury Instr. No. 4, R. Vol. I, tab 34 at 5. He also proposed a supplemental jury instruction containing the above language, as well as the following: "A jury must acquit a defendant charged with possession of contraband when evidence demonstrates not only that the defendant merely momentarily possessed contraband, but also that the defendant either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporarily." Defendant's Proposed Supp. Jury Instr. No. 1, id., tab 35 at 3. The court refused to give either instruction.

We have previously considered the "fleeting possession" defense in the context of a § 922(g) conviction:

[A] jury must acquit a defendant charged with possession of contraband when the evidence demonstrates not only that the defendant merely momentarily possessed contraband, but also that the defendant either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporarily. . . .

Thus, even if a felon held a firearm for a mere second or two, unless that felon truly did not know that what he possessed was a firearm or there was some recognized legal justification for his holding the firearm, § 922(g) will still impose criminal liability. If, however, a felon who momentarily possessed a firearm genuinely lacked knowledge that he possessed a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it.

Adkins, 196 F.3d at 1115 (emphasis added). We agree with the government and the district court that there is insufficient evidence to support "a possible finding that [Williams] only momentarily possessed the [firearm], and . . . lacked either knowledge he possessed [the firearm] or criminal intent to possess it." Rather, while the evidence suggests Miller may have passed the gun to Williams at the last moment prior to both men being searched, as indicated above, there is ample evidence that Williams knew he had the gun, and, in fact, tried to hide that fact.⁽⁸⁾ See United States v. Grissom, 44 F.3d 1507, 1513 (10th Cir. 1995) (noting case where court held that theory of defense instruction properly refused when it "was essentially a recounting of the facts as seen through the rose-colored glasses of the defense . . . ." (quoting United States v. Barham, 595 F.2d 231, 244 (5th Cir. 1979))). The court did not err in refusing to give Williams' "theory of defense" instruction.

1. Supplemental Instruction on Knowing Possession

During jury deliberations, the jury asked the court the following question: "Restate last information on the influence of alcohol and its effect on our decision." R. Vol. I, tab 40. The court responded as follows: "With respect to Mr. Williams'[] alleged intoxication, if Mr. Williams was capable of any conscious act at the time that he was sitting there, then he can be found to have done something knowingly. If he was totally oblivious to the point of being unconscious, then he can't act knowingly. It's going to be up to you to read and go through these instructions and to determine whether Mr. Williams acted knowingly or not, given all the facts and circumstances surrounding this incident." Id. Williams argues that the court's response to the jury's inquiry "relieved [the government] of proving the element of 'knowing possession' by the higher standard of beyond a reasonable doubt when the court equated a 'knowing act' to one being conscious, and being incapable of acting knowingly if they are unconscious." Appellant's Br. at 23.

"The submission of supplemental jury instructions after the jury has retired is a matter committed to the trial court's discretion." United States v. Arias-Santos, 39 F.3d 1070, 1075 (10th Cir. 1994). Of course, "[w]e review the jury instructions as a whole to determine whether they correctly state the governing law and provide an ample understanding of the issues and the applicable standards." Id. at 1076.

We hold that the district court did not abuse its discretion in giving the supplemental instruction. As the government argues, and as we have already held, voluntary intoxication is not a defense to a general intent crime like being a felon-in-possession under § 922(g). See Klein, 13 F.3d at 1183; Brown, 367 F.3d at 556; Bennett, 975 F.2d at 308; Williams, 892 F.2d at 303. Accordingly, intoxication is only relevant as it bears upon Williams' ability to act knowingly, as required by the statute. Thus, the court simply explained that intoxication to the point of unconsciousness would make it impossible for Williams to act knowingly. The court referred the jury to all the instructions given, which in turn set forth the elements required for the jury to find Williams guilty, including the requirement that the government prove beyond a reasonable doubt that Williams knowingly possessed the firearm. The instructions as a whole correctly set forth the law, and we perceive no abuse of discretion in the court's response to the jury's request for clarification regarding Williams' use of alcohol.

1. "In or Affecting Commerce" Requirement

Williams argues that "mere movement of the firearm from one state to another at some undetermined time in the past does not constitute a 'substantial' effect on interstate commerce to invoke the Commerce Clause powers of Congress under the second prong of 18 U.S.C. § 922(g) (mere possession 'in or affecting commerce'), where the regulated activity is non-economic intrastate conduct[.]" Appellant's Br. at 24. Williams concedes that this argument is foreclosed by our decisions in United States v. Brown, 314 F.3d 1216 (10th Cir. 2003), United States v. Bayles, 310 F.3d 1302 (10th Cir. 2002), and United States v. Dorris, 236 F.3d 582 (10th Cir. 2000). We therefore do not address it further.

At sentencing, both the court and Williams raised grounds for departing downward from the otherwise applicable guideline sentencing range. The court considered a downward departure based on "diminished capacity," R. Vol. III at 360, and Williams argued for a downward departure on the ground that the offenses that made him an armed career criminal were very old, id. at 365, and that he was "less culpable" and played a "minor role" in the offense, id. at 364. The court ultimately abandoned the "diminished capacity" basis for a downward departure, and denied Williams' motion for a downward departure, finding that it "[didn't] have a basis for a departure." Id. at 403.

The court did, however, indicate its displeasure and frustration with the severity of the sentence it felt obligated to impose upon Williams:

This really is one of the most difficult and saddest cases that I have ever had in front of me, because I think that the sentence I'm about to impose is so grossly out of proportion to the offense conduct here that it just smacks of something that certainly isn't justice. . . . [W]hile these can't be factors to take into account, I'm looking at a guy whose [sic] 52 or 53 years old. Certainly he's responsible for his past­I mean, it follows him around wherever he goes­but here's a guy who was drunk in a restaurant and had a gun literally thrust at him, and he put it in his pocket, and he ends up getting shot, and I wonder who the real victim in this case is. I mean, I have got to tell you that if there's anybody that's coming out of this thing being victimized­and, admittedly, through some conduct of his own, he shouldn't have been drunk; he shouldn't have put the gun in his pocket. But, on the other hand, if it hadn't been thrust at him that night during a fairly excited period of time, he wouldn't be sitting here today either. And that's worth 210 months in the penitentiary? Good lord, folks! What have we come to here? I'm sorry, but, you know, I really don't have anyplace to go with this. Mr. Williams, you're here because of what you did. I'm doing what I am doing here today not because I'm happy about it. As a matter of fact, I'm disgusted with the sentence that I have to give to you here today. But that's not [the prosecution's]­I mean, they didn't write the guidelines. They didn't write the laws. We have Congress to thank for this, I guess.

You know, my understanding was that the whole purpose of these guidelines when they were instituted was bring some sense of uniformity to the sentencing process, to keep somebody in one location from getting a sentence very different for the same crime than people in another location. I think if the guidelines had given us something to use as a starting point that maybe I would feel a little better about this process, because I could go somewhere with it. Mr. Williams, if it was up to me I would lock you up for five years because you had no business being where you were, doing what you were doing that night. But I think five years for this would be more than plenty. As it is, 210 months. What's that amount to? It's 15, 16, about 17 years that you're going to get for sitting in a restaurant and putting a gun in your pocket that a guy shoved at you while you were drunk. I'm not excusing you for what you did, but I think this punishment is gross; I think it's immoral.

With that, Mr. Williams, I don't have a basis for a departure.

Id. at 401-03. The court then imposed a sentence of 210 months, at the bottom of the Guideline range.

As our prior analysis indicates, this case presents no Sixth Amendment error under Booker, inasmuch as the only judicial fact-finding Williams challenges is the court's findings about Williams' prior convictions, which, as we have explained, are not subject to the Blakely/Booker rule about judicial fact-finding. However, the district court did sentence Williams under the erroneous belief that the Guidelines were mandatory, thus committing "non-constitutional Booker error." Because this issue was not raised below, we review it for plain error only. See Fed. R. Crim. P. 52(b); Booker, 125 S. Ct. at 769 (noting that the Court "expect[s] reviewing courts to . . . determin[e] . . . whether the issue was raised below and whether it fails the 'plain error' test"). "'Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Gonzalez-Huerta, No. 04-2045, 2005 WL 807008, at *3 (10th Cir. Apr. 8, 2005) (en banc) (quoting United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.) (quotation omitted), cert. denied, 125 S. Ct. 510 (2004)). The first two prongs are met here, as Booker makes clear that the mandatory application of the Guidelines is error and that error is now plain. Gonzalez-Huerta, 2005 WL 807008, at *3; see also Johnson v. United States, 520 U.S. 461, 468 (1997). We therefore consider whether Williams can satisfy both the third and fourth prongs of plain-error review.

To satisfy the third prong of plain-error review--showing that the error affects substantial rights--"usually means that the error must have affected the outcome of the district court proceedings." United States v. Cotton, 535 U.S. 625, 632 (2002) (quotation omitted); see also United States v. Olano, 507 U.S. 725, 734 (1993). Williams bears the burden of proving the error affected his substantial rights. Gonzalez-Huerta, 2005 WL 807008, at *3; see also United States v. Vonn, 535 U.S. 55, 62-63 (2002). Thus, to satisfy the third prong of plain-error review, Williams must show "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2339 (2004) (alteration and quotation omitted). To obtain relief, however, Williams must also satisfy the fourth prong of plain-error review--that is, he must demonstrate that the error is "particularly egregious" and that our failure to notice it would result in a "miscarriage of justice." United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997); see also Olano, 507 U.S. at 736.

We hold that, in the unique circumstances of this case, and regardless of factors which are developed for the application of plain error post-Booker, Williams has satisfied the third and fourth prongs of plain-error review, such that we must notice the error and remand this case for resentencing at or above the statutory minimum. See United States v. Trujillo-Terrazas, No. 04-2075, 2005 WL 846230, at **2-4 (10th Cir. Apr. 13, 2005) (finding that the third and fourth prongs for establishing plain error were satisfied). While the standard for meeting the fourth prong is "demanding," Gonzalez-Huerta, 2005 WL 807008, at *7, we have acknowledged that, "depend[ing] on the facts of the particular case," it can be met. Id. We conclude that this is such a case.

CONCLUSION

For the foregoing reasons, Williams' conviction is AFFIRMED, his sentence is VACATED and REMANDED for resentencing.

No. 04-3175, United States v. Williams

MURPHY, Circuit Judge, concurring in part and dissenting in part.

I concur with the majority's decision to affirm Williams' conviction. I respectfully dissent, however, from the conclusion that this case should be remanded for resentencing pursuant to United States v. Booker, 125 S. Ct. 738 (2005). Williams did not raise the issue of the constitutionality of the United States Sentencing Guidelines in the district court and cannot establish that the court committed plain error. I would therefore affirm Williams' sentence.

To establish plain error, Williams must demonstrate (1) error, (2) that is plain, and (3) that affected his substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002). If the error meets all these conditions, this court may exercise discretion to correct the error if it would seriously affect the fairness, integrity, or public reputation of judicial proceedings to let the error stand. Id. at 631-32. I agree with the majority that the first two prongs of the plain-error test are satisfied in this case. See United States v. Gonzalez-Huerta, No. 04-2045, slip op. at 8 (10th Cir. 2005). Furthermore, the district court's statements at sentencing indicate that it would almost certainly have given Williams a lower sentence under an advisory Guidelines system. This is sufficient to satisfy the third prong of the plain-error test because it satisfies Williams' burden of showing "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Dominguez Benitez, 124 S. Ct. 2333, 2339 (2004).

I disagree with the conclusion of the majority, however, that Williams can satisfy the "fairness, integrity, or public reputation of judicial proceedings" portion of the plain-error test (the so-called "fourth prong" of the test). This court will exercise its discretion to notice plain error only when the error is "particularly egregious" and failure to notice the error would produce "a miscarriage of justice." United States v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997) (quotation omitted). The defendant has the burden of establishing that the fourth prong is satisfied. Gonzalez-Huerta, slip op. at 18. In United States v. Trujillo-Terrazas, this court recognized that most defendants in non-constitutional Booker cases will fail to meet this demanding requirement. No. 04-2075, slip op. at 11 (10th Cir. 2005). The district court's error in such a case "is not the substantive error first recognized in Blakely and which Booker sought to eliminate­namely, that the Sixth Amendment is violated when a judge, rather than a jury, finds facts that mandatorily increase a defendant's sentence." Gonzalez-Huerta, slip op. at 20. Rather, the error "is only error insofar as it runs afoul of the Court's remedy for the unconstitutional implications of the Guidelines." Id.

It is for this reason that Williams cannot satisfy the fourth plain-error prong. The majority correctly notes that the district court's use of prior convictions to enhance Williams' sentence did not implicate the Sixth Amendment and that Williams' sentence was therefore not unconstitutional. In fact, the sentence imposed by the judge was perfectly proper at the time of sentencing and did not become error in any sense until after the Supreme Court issued its remedial holding in Booker. Williams can therefore claim he suffered error at sentencing only because the Supreme Court chose to remedy a constitutional problem in an entirely different class of cases by making the Guidelines advisory in all cases. See id. (noting "[t]he fortuity of the Court's choice to excise 18 U.S.C. § 3553(b)(1), instead of a remedy more directly related to the underlying constitutional problem"). As the Trujillo-Terrazas panel noted, "a non-constitutional Booker error is 'error' at all only as the serendipitous consequence of the severability analysis the Supreme Court employed to correct the constitutional infirmity created by the combination of judicial fact finding and mandatory application of the Guidelines." Trujillo-Terrazas, slip op. at 11.

Although the court in Trujillo-Terrazas recognized the difficulty of satisfying the fourth plain-error prong in cases of non-constitutional Booker error, the court did conclude that the test was satisfied in that case. Id. at 12. The defendant in Trujillo-Terrazas received a sixteen-level enhancement to his base offense level based on a prior conviction for arson. Id. at 2. The arson conviction resulted from the defendant's act of tossing a lighted match through a car window and thereby causing $35 in damage. Id. at 3. The court concluded that the fourth plain-error prong was satisfied because the "comparatively innocuous" nature of the prior conviction presented a compelling case that a significant departure from the Guidelines range might be warranted. Id. at 3, 12. I question the result reached by the court in Trujillo-Terrazas because I believe that rarely, if ever, will a defendant be able to establish that non-Sixth Amendment Booker error constitutes a "miscarriage of justice."⁽¹⁾ Regardless of the result under its particular facts, however, the case still stands for the principle that non-Sixth Amendment Booker error can satisfy the fourth prong of the plain-error test only in the rarest of circumstances. See id. at 11-12.

In contrast to the defendant in Trujillo-Terrazas, the bulk of Williams' sentence in this case was the result of a statutory mandatory minimum. See 18 U.S.C. § 924(e) (requiring a fifteen-year mandatory minimum sentence). Because the fifteen-year minimum sentence is unaffected by the holding in Booker, any unfairness in this case must result from the additional thirty months above the statutory minimum that the Guidelines mandated in this case. See United States v. Moore, No. 04-8078, --- F.3d ----, 2005 WL 668813, at *3 (10th Cir. Mar. 23, 2005) (holding that the fact of a prior conviction under § 924(e) need not be proved to a jury beyond a reasonable doubt). This extra thirty months of imprisonment, however, was based solely on Williams' exceptionally violent criminal history, which included the violent robbery of a grocery store and conspiracy to commit bank robbery, among other crimes.⁽²⁾ Considering that district courts post-Booker must continue to impose the fifteen-year statutory minimum on defendants with substantially less severe criminal histories, I do not consider it particularly unfair to let stand a thirty-month enhancement reflecting the relative severity of Williams' past criminal conduct. See Gonzalez-Huerta, slip op. at 21 ("[T]he purpose of the Guidelines was to promote uniformity in sentencing so as to prevent vastly divergent sentences for offenders with similar criminal histories and offenses."). Unquestionably, the facts giving rise to Williams' sentence enhancements under the Guidelines present substantially greater justification for the enhancement than the single prior conviction in Trujillo-Terrazas.

The district court's expression of dissatisfaction with the length of Williams' sentence should not change the result in this case. The district court's comments do demonstrate a reasonable probability of a lower sentence under an advisory Guidelines scheme and thereby satisfy the third prong of the plain-error test. They do not, however, demonstrate that Williams' sentence constitutes a miscarriage of justice. See Gonzalez-Huerta, slip op. at 17 (noting that this court is "bound to treat the third and fourth prongs as independent inquiries"). As this court recognized in Gonzalez-Huerta, "for the last eighteen years, every federal court has given the Guidelines tacit, and in most cases explicit, approval, applying them to tens of thousands of federal sentences." Id. at 22. The Guidelines were perfectly constitutional as applied to many of these cases, and this court "cannot possibly say that all sentences imposed before Booker threatened the fairness, integrity, or public reputation of judicial proceedings, or undermined our confidence in the outcome of the sentence, simply because the Guidelines were mandatory." Id. (quotation omitted). For this reason, "[e]ven if a defendant can demonstrate that the district court felt particular sympathy for him, and might impose a lesser sentence on remand, failing to correct this type of plain error would not impugn the fairness, integrity, and public reputation of judicial proceedings." Trujillo-Terrazas, slip op. at 11.

This court has held that the fourth prong of the plain-error test is satisfied "only in those rare cases in which core notions of justice are offended." Gonzalez-Huerta, slip op. at 23. I cannot agree that core notions of justice would be offended by denying Williams a remedy adopted by the Supreme Court in response to constitutional error in an entirely different class of cases, at least when he failed to raise this argument in front of the district court. For this reason, I respectfully dissent.

^1.Denny's waitress Michelle McClary testified at trial that Williams "was very drunk to the point he was nodding off. Lady who was with him had to order his food for him. He was almost under the table. Only reason he was able to stay in the booth was because he was holding on to his lady friend." R. Vol. III at 305. She also testified that his "words were slurred" such that she could not understand him. Id. at 315. Another Denny's employee, Shirley Jean Bunch, also testified that the entire group with Williams was "drunk." Id. at 319. One of Williams' companions at Denny's, Terry Douglas, testified that Williams had consumed at least eight drinks and some beers before they went to Denny's. He further testified that Williams "wasn't in good condition" when they got to the restaurant, and that he had to "[h]elp him get in so he could keep his balance, keep from falling." Id. at 275.

By contrast, the officers at the scene testified that Williams was not as inebriated. Officer Dallas Boone testified that Williams "didn't appear to be inebriated in my personal professional experience." R. Vol. II at 167. Officer Gabriel Ohmart similarly testified that Williams "was not overly intoxicated by any means." Id. at 188.

^2.Officer Boone testified that Williams "was being very evasive, wouldn't look up at me, acting as if he didn't hear me, didn't want to look at me right, adjusting his weight back and forth on each leg, keeping his hands under the table, with the exception of the one time I seen him take a bite of food, still his hands went back right underneath the table." R. Vol. II at 153. He further testified that Miller "was also not complying about putting his hands on the table, shifting his weight. He was rubbing his hands on his knees as in a seated position." Id. at 164-65. Officer Ohmart also testified that Miller was "fidgeting with his pocket, moving his left hand back around to his back hip pocket, and he was shifting his weight from side-to-side." Id. at 179.

^3.Detective Salcida testified that, during his interview with Williams, Williams stated that "'[w]hen the gun slid, I grabbed it and tried to get it away from the dude ­ away from dudes, sling it away from me.'" Id. at 266. Salcida testified that Williams denied that the gun was in his pocket, even though there was a bullet hole in the pocket. Douglas testified that Miller "had a handgun. He kept pulling it out, and we told him to put it up because there was going to be some trouble. Somebody might see it." Id. at 281. Douglas admitted that he never told the police that Miller had a gun, nor did he ever deny that Williams had one.

^4.On appeal, Williams only argues that the firearm should have been suppressed.

^5.Williams argues that, because the identity of the restaurant patrons who reported seeing a gun at Williams' table was never confirmed and they left before the police arrived, their tip to security guard Lacy is an anonymous tip like that in J.L. While we need not decide this issue, because we conclude that the seizure of the firearm was supported by more than just the tip, we note that the tip in this case had greater indicia of reliability than a truly anonymous tip. The tip was based upon visual observation by patrons sitting nearby, and the patrons were regulars at the restaurant whom Lacy knew and recognized, even if not by name.

^6.The only case from our circuit holding that voluntary intoxication is not a defense to § 922(g) is an unpublished decision, which we do not normally cite. United States v. Knight, No. 94-1488, 1995 WL 511139, at **1 (10th Cir. Aug. 30, 1995). We have, however, stated on several previous occasions that voluntary intoxication is not a defense to general intent crimes. See, e.g., United States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997).

^7.We note that some of our cases have articulated a de novo standard for the review of the propriety of a district court's failure to submit a theory of defense instruction, see, e.g., Bindley, 157 F.3d at 1241 ("We review de novo whether a district court committed reversible error in failing to submit a requested theory of defense instruction."), while other cases have articulated an abuse of discretion standard. See, e.g., Adkins, 196 F.3d at 1116 (holding that the "district court did not abuse its discretion in failing to give the fleeting possession instruction."). However, both standards play a role in our review of the propriety of a theory of defense instruction, as explained in United States v. Wolny, 133 F.3d 758 (10th Cir. 1998):

We review the instructions de novo to determine whether, as a whole, they adequately apprised the jury of the issues and the governing law. The government suggests that we should review [the failure to give a theory of defense instruction] for abuse of discretion. It is true that we review a district court's refusal to submit a requested instruction to the jury for abuse of discretion. However, the ultimate standard of review is de novo ­ to determine, as explained above, whether the instructions as a whole adequately apprised the jury of the issues and the governing law. "Discretion" comes into play in that the district judge has substantial discretion wording the instructions, as long as they adequately present the law and the issues.

Id. at 765 (internal quotations and citations omitted).

^8.See notes 2 & 3, supra.

^9.The government actually presented evidence of four prior violent felonies: a 1971 conviction for first degree robbery; a 1973 conviction for second degree murder; a 1984 conviction for aggravated assault, battery and robbery, felony theft and unlawful possession of a firearm; and a 1993 conviction for conspiracy to commit bank robbery.

^10.We address this issue under our normal standard of review because Williams preserved the issue by stating at sentencing that "I think that an objection should be made or a record be made just on that point just in case the Supreme Court would revisit the sentencing or the prior predicate issue, whether or not that does have to be charged and proven beyond a reasonable doubt." R. Vol. III at 398-99. Although Williams was sentenced prior to the Supreme Court's decisions in Blakely and Booker, which applied the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), to the federal sentencing guidelines, such that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt," Booker, 125 S. Ct. at 756, he preserved his right to challenge, albeit unsuccessfully, the use of his prior convictions to enhance his sentence.

^1.The time for filing an application for rehearing in Trujillo-Terrazas has not yet expired.

^2.In addition, Williams' criminal history was enhanced because the present offense was committed while he was on probation. Although Williams also has convictions for second degree murder and first degree robbery, these convictions did not factor into his criminal history category because of the age of the crimes.

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