UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEREMY BRIAN JAQUES,

Defendant-Appellant.

No. 04-8106

(District of Wyoming)

(D.C. No. 04-CR-129-CAB)

ORDER AND JUDGMENT*

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is, therefore, ordered submitted without oral argument.
Defendant-appellant Jeremy Brian Jaques pleaded guilty to conspiracy to possess with intent to distribute, and to distribute, more than fifty grams of methamphetamine. As part of his plea agreement, Jaques stipulated that his offense involved at least 350 grams but less than 500 grams of methamphetamine. He also agreed to a sentencing enhancement under 21 U.S.C. § 851, requiring a mandatory minimum sentence of ten years.

After calculating an adjusted offense level of twenty-seven and a criminal history category of VI, the presentence investigation report ("PSR") recommended a sentencing range under the United States Sentencing Guidelines ("U.S.S.G.") of 130 to 162 months. Jaques asked the court to downwardly depart and argued that his federal sentence should begin running in May 2003.2 The district court denied the downward departure and rejected Jaques' argument regarding the federal sentence because he was not placed in federal custody until after his sentence on a previous offense expired in May 2004. On September 23, 2004, the district court sentenced Jaques to 142 months' imprisonment, slightly below the middle of the applicable Guidelines range, to be followed by an eight-year term of supervised release.

Jaques filed a timely notice of appeal and now challenges the sentence imposed by the district court. On appeal, Jaques argues that (1) the district court started his federal sentence on the wrong date and (2) he must be resentenced in light of the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms Jaques' sentence.

Jaques relies on U.S.S.G. § 5G1.3(b) and (c) in his argument that the district court should have set his federal sentence to begin running in May 2003. As the government points out, the Guidelines provide for sentences to run concurrently only when there is an "undischarged term of imprisonment" remaining. U.S.S.G. § 5G1.3(b), (c) (2003); id. cmt. n.2(D); id. cmt. n.3(A); see also United States v. Dunham, 295 F.3d 605, 610 (6th Cir. 2002) (collecting cases for the proposition that § 5G1.3(b) applies only to "a defendant serving an undischarged term of imprisonment at the time of his federal sentencing"). Jaques, however, was not subject to either of these Guidelines provisions because his prior state sentence was fully discharged at the time he was arrested by federal authorities.3 The district court, therefore, did not err in declining to apply Guidelines provisions that were not applicable to Jaques.

While Jaques' appeal was pending, the Supreme Court decided United States v. Booker in which the Court held 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." 125 S. Ct. at 756. Jaques argues, for the first time on appeal, that he must be resentenced after Booker, thus we review for plain error. Fed. R. Crim. P. 52(b). "This court has discretion to recognize plain error that was not raised in the district court when (1) there is an error; (2) that is plain; (3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Sierra-Castillo, 405 F.3d 932, 941 (10th Cir. 2005). Here, Jaques admitted all of the underlying facts supporting his sentence, so the district court committed only non-constitutional Booker error by applying the Guidelines in a mandatory, as opposed to an advisory, fashion. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005) (en banc). This error amounts to plain error sufficient to satisfy the first two prongs of the plain-error test. Id. at 732. Jaques, however, cannot satisfy the third prong of plain error review because there is no indication in the record that the district court would have imposed a lesser sentence had it been operating under an advisory sentencing scheme. See United States v. Wilson, __ F.3d __, No. 03-5207, 2005 WL 1693999, at *6 (10th Cir. July 21, 2005). The district court denied Jaques' motion for a downward departure and, exercising its limited pre-Booker discretion, imposed a sentence in the middle of the applicable Guidelines range.4 In so doing, the district court stated:

I have not seen in Mr. Jaques any effort in the last ten years to rehabilitate himself. In fact, since 1994, he's been on a nonstop criminal binge, and now at 28, he has a rap sheet that in this presentence report takes four pages to discuss it, which is quite unusual, quite long.

And of course in this process, Mr. Jaques has fathered four children by different women and hasn't, as near as I can see, done particularly well in supporting them. And about the only thing he's done is support himself with drugs.

These statements of the district court support our conclusion that the district court would not have imposed a less severe sentence had it realized it had the discretion to do so. Because Jaques is unable to demonstrate that the district court's error affected his substantial rights, he is not entitled to relief. Accordingly, for the reasons detailed above, the sentence imposed by the district court is AFFIRMED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge