United States v. Eades , 177 F. App'x 802 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 25, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-4225
v. (D.C. No. 2:03-CR-987-TC)
JERRY WAYNE EADES, also known (D. Utah)
as Jerry Cox, also known as Jerry
Foster,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
After a jury trial, Appellant was convicted of violating 18 U.S.C. § 922(g),
possession of a firearm by a restricted person. At sentencing, Appellant argued
*
This order and judgment is not binding precedent, except under the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.
that sentence enhancements for possessing a firearm in connection with another
felony and for obstruction of justice must be proven beyond a reasonable doubt at
trial. The court rejected Appellant’s argument and ruled that both sentence
enhancements applied. Appellant then appealed his sentence on the grounds that
the district court violated his constitutional rights, based on Blakely v.
Washington, 542 U.S. 296 (2004). While the appeal was pending, United States
v. Booker, 543 U.S. 220 (2005), was decided. As a result of Booker, the parties
entered into a joint stipulation requesting that the case be remanded. Specifically,
the joint stipulation stated in relevant part:
The Booker error cannot be deemed harmless because the court
sentenced [Appellant] at the low end of the guideline range and did
not state an alternative discretionary sentence. United States v.
Labastida-Segura, 396 F.3d 1140 (10th Cir. 2005). This case should
be remanded for re-sentencing to give the district court the
opportunity to consider the Guidelines as advisory and the factors in
18 U.S.C. § 3553(a) in arriving at a reasonable sentence.
Joint Motion to Vacate Sentence and Remand for Resentencing, 2 (June 9, 2005).
At resentencing, Appellant argued that it would be an ex post facto
violation for the district court to apply Booker. The court rejected Appellant’s
argument and sentenced him to fifty-five months in prison. Amended Judgment, 1
(D. Utah Aug. 17, 2005). Appellant filed a timely notice of appeal.
We have held that the application of Booker’s remedial holding–that the
Sentencing Guidelines are now advisory–in sentencing for an offense that
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predated Booker does not violate the Fifth Amendment’s Due Process Clause.
United States v. Rines, 419 F.3d 1104, 1106 (10th Cir. 2005).
We have carefully reviewed the briefs of Appellant and Appellee, the
district court’s disposition, and the record on appeal. We are in accord with the
district court’s resentencing, and we AFFIRM the district court’s amended
judgment.
Entered for the Court
Monroe G. McKay
Circuit Judge
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