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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before BRISCOE, LUCERO, and
MURPHY, Circuit Judges.
Randolph Adrian Jackson appeals his sentence of five years imprisonment
imposed following his guilty plea to interstate travel with intent to promote
unlawful activity in violation of 18 U.S.C. § 1952(a)(3) and aiding and abetting
in violation of 18 U.S.C. § 2. He argues that the district court's mandatory
application of the U.S. Sentencing Guidelines violates the Supreme Court's
decision in United States v. Booker, 125 S.Ct 738 (2005). He further argues that
Booker error amounts to structural error, and therefore his case should be
remanded for resentencing. He acknowledges this court recently held that non-constitutional
Booker error does not constitute structural error. United States v.
Gonzalez-Huerta, 403 F.3d 727, 733-34 (10th Cir. 2005) (en banc). He raises
this issue exclusively to preserve an appeal to the Supreme Court. Because
Jackson did not challenge his sentence on Booker grounds below, we review the
non-constitutional Booker error that results from a mandatory application of the
sentencing guidelines for plain error. Gonzalez-Huerta, 403 F.3d at 732.
Jackson does not argue on appeal that Booker error affected his substantial rights
or affected the fairness, integrity, or public reputation of judicial proceedings.
As such, we decline to remand for resentencing.
Accordingly, we AFFIRM the sentencing order entered by the district
court.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
FOOTNOTES
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*.The case is unanimously ordered submitted
without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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