02-8110 -- U.S. v. Jardine -- 05/12/2005

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PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,	No. 02-8110
v.	D. of Wyo.
ANDY JARDINE, Defendant-Appellant.	(D.C. No. 02-CR-38-1J)

ORDER ON REMAND

Before LUCERO, PORFILIO, and TYMKOVICH, Circuit Judges.

A jury convicted Andy Jardine of violating 18 U.S.C. § 922(g). The pre-sentence report (PSR) recommended several enhancements to Jardine's sentence, to which he objected on factual and constitutional grounds. The district court overruled his objections and ultimately sentenced Jardine to 108 months imprisonment.

Jardine filed a timely appeal with this court alleging the sentence violated his constitutional rights. We affirmed Jardine's sentence. See United States v. Jardine, 364 F.3d 1200 (10th Cir. 2004). Jardine then timely filed a petition for writ of certiorari with the Supreme Court of the United States asserting his sentence violated his constitutional rights. After the Court decided United States v. Booker, 125 S. Ct. 738 (2005), it granted the writ and remanded to this court for further consideration. See Jardine v. United States, 125 S. Ct. 1024 (2005). As a result, we requested supplemental briefing in light of Booker.

Jardine requests that we remand for re-sentencing and the government concedes the existence of constitutional error in this case and urges us to remand to the district court for re-sentencing in accordance with Booker. Accordingly, we REINSTATE our previous opinion except for the portion affirming Jardine's sentence, and REMAND for re-sentencing in accordance with Booker. The mandate shall issue forthwith.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

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