United States v. Booker

Appellate Case: 22-7000 Document: 010110833802 Date Filed: 03/28/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 28, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-7000
DONALD JOE BOOKER, JR.,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:21-CR-00037-JFH-1)
_________________________________
Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
Linda A. Epperley, Assistant United States Attorney (Christopher J. Wilson, United
States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.
_________________________________
Before MORITZ, SEYMOUR, and EBEL, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised
release, the district court revoked his supervision and sentenced him to twenty-four
months in prison, the statutory maximum. For the first time on appeal, Mr. Booker
argues that the district court erroneously based his sentence for violating supervised
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release on retribution whereas the statute governing the revocation of supervised
release implicitly prohibits considering retribution. See 18 U.S.C. § 3583(e).
We review Mr. Booker’s sentence for plain error. Clarifying the scope of 18
U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of
supervised release based on the need for retribution. Because the district court
quoted from a § 3553(a) sentencing factor representing retribution, we conclude that
the district court erred. But even assuming this error was plain, Mr. Booker has not
shown that it affected his substantial rights because we conclude there is no
reasonable probability that his sentence would have been shorter had the court not
erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we
AFFIRM Mr. Booker’s twenty-four-month sentence.
I. BACKGROUND
In 2010, Mr. Booker pled guilty to one count of felon in possession, 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). He was sentenced in the Northern District of Oklahoma
to thirty-three months of imprisonment and three years of supervised release. Mr.
Booker’s term of supervision began in 2020 after a concurrent state sentence ended.
After a series of transfers, the Eastern District of Oklahoma took jurisdiction over his
supervised release in March 2021.
Mr. Booker’s probation officers first petitioned to revoke his supervised
release on May 3, 2021. The district court issued a warrant for his arrest that day.
The probation officers amended the petition twice, with the final amended petition
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approved by the district court on June 29, 2021. The final amended petition alleged
that Mr. Booker had violated several conditions of supervised release by
 violating traffic laws by speeding, driving without a license or insurance, and
refusing to submit to sobriety testing,
 testing positive for amphetamine or methamphetamine use on four separate
occasions,
 being found in possession of methamphetamine when he was booked into jail
on the revocation warrant,
 leaving the Eastern District of Oklahoma without permission on three separate
occasions,
 failing to notify his probation officer about contacts with law enforcement on
three separate occasions, and
 failing to appear for drug testing on five separate occasions.
Mr. Booker was arrested for these alleged violations and made an initial
appearance in the Western District of Oklahoma on September 21, 2021, where he
waived his right to an identity hearing. The Magistrate Judge ordered him
transported back to the Eastern District of Oklahoma that day. In the Eastern District
of Oklahoma, Mr. Booker waived his preliminary hearing at an initial appearance on
September 28, 2021. A final revocation and sentencing hearing was set for
December 16, 2021.
In a sentencing memorandum filed before the final revocation hearing, Mr.
Booker indicated that he intended to stipulate to the alleged violations and requested
a guideline sentence. The memorandum explained that Mr. Booker suffered from
“elements of schizophrenia” that “he need[ed] to treat with appropriate prescribed
drugs rather than . . . illegal drugs.” R Vol. 1 at 57. It also indicated that Mr. Booker
was prepared to undertake mental health treatment.
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The district court conducted the final revocation hearing on December 16,
2021. At the hearing, the court stated that it had calculated the guideline range to be
5 to 11 months in prison and that the statutory maximum sentence was a 24-month
term of imprisonment. The court recited the factual bases for Mr. Booker’s charged
supervised release violations, and Mr. Booker admitted to the violations. Mr. Booker
apologized to the court, admitted that he had been self-medicating with illegal
substances including methamphetamine, and represented that he was presently taking
Risperdal and engaging in mental health treatment in detention.
The court then revoked Mr. Booker’s supervised release and sentenced him to
the statutory maximum, a 24-month term of imprisonment. The court justified the
sentence as follows:
The Court has considered the violation policy statements in Chapter 7 of
the United States Sentencing Guideline manual now in effect and the
guidelines in general. The Court views these policies and guidelines as
advisory in nature for the purpose of these proceedings. Nevertheless, the
Court has considered the sentencing guidelines along with all the factors
set forth in Title 18, U.S.C., Sections 3553(a), which are applicable in the
revocation context pursuant to Title 18, U.S.C. 3583(e), and I’ve done
this to reach an appropriate and reasonable sentence in this case.
Specifically, I’ve considered the nature and circumstances of the
numerous violations and the violation conduct and the history and
characteristics of Mr. Booker. Defendant has shown repeated disregard
for rules and condition of his supervised release. He has continued to
commit new law violations and he has illegally possessed controlled
substances, which he acknowledges. He has on multiple occasions failed
to report to his law enforcement contact as required by the conditions of
his supervision and he has also travelled outside the district of supervision
without permission of his probation officer.
Based upon these factors, a sentence outside the advisory guideline range
is necessary to serve as an adequate deterrent to this defendant as well as
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others, promote respect for the law, and provide just punishment for the
offense, and provide protection for the public.
R. Vol. 2 at 22–23 (emphasis added). Mr. Booker appeals, arguing that the
district court’s reference to the need to “promote respect for the law, and provide just
punishment for the offense” was reversible error in the context of a supervised
release revocation proceeding. (Aplt. B. 5.) We agree that the district court erred,
but affirm because Mr. Booker has not shown that the error affected his substantial
rights.
II. STANDARD OF REVIEW
Because Mr. Booker did not raise this argument below, we review for plain
error. United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en
banc). Plain-error review requires Mr. Booker to “establish that (1) the district court
committed error; (2) the error was plain—that is, it was obvious under current well-
settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the
error seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Perez-Perez, 992 F.3d 970, 974 (10th Cir. 2021)
(quoting United States v. Dalton, 918 F.3d 1117, 1129–30 (10th Cir. 2019) (alteration
in Perez-Perez)).
III. DISCUSSION
A district court may revoke a term of supervised release and impose a term of
imprisonment “when a person violates a condition of his or her supervised release.”
United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir. 2004). “However, in doing
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so the district court is required to consider” a subset of the § 3553(a) sentencing
factors incorporated by reference into the statute governing the modification and
revocation of supervised release. Id.; 18 U.S.C. § 3583(e). Section 3583(e) provides
that a district court “may” terminate, modify, or revoke a term of supervised release
“after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(e).
Notably absent from this list is § 3553(a)(2)(A), which directs courts to
consider the
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense[.]
Section 3553(a)(2)(A) represents “retribution,” one of the “four purposes of
sentencing” that courts must consider when fashioning a sentence during the initial
sentencing process. Tapia v. United States, 564 U.S. 319, 325 (2011).
The district court justified Mr. Booker’s sentence for violation of supervised
release in part as “necessary to serve as an adequate deterrent to this defendant as
well as others, promote respect for the law, and provide just punishment for the
offense, and provide protection for the public.” R. Vol. 2 at 23. By referencing the
need to “promote respect for the law, and provide just punishment for the offense,”
the district court quoted from § 3553(a)(2)(A), the omitted factor.
Mr. Booker argues that the district court erred by quoting from
§ 3553(a)(2)(A) because its omission in § 3583(e) means that district courts may not
consider it when modifying or revoking a term of supervised release. In a series of
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unpublished opinions, we have acknowledged that our circuit has not decided
whether it is error to consider this “retribution” factor when modifying or revoking a
term of supervised release. See United States v. Lee, 650 F. App’x 948, 951 (10th
Cir. 2016) (unpublished) (“Neither the Supreme Court nor this court have decided
whether consideration of these § 3553(a)(2)(A) factors [not incorporated into
§ 3583(e)] renders a revocation sentence procedurally unreasonable.”); United States
v. Miller, 608 F. App’x 707, 709 (10th Cir. 2015) (unpublished); United States v.
Douglas, 556 F. App’x 747, 750–51 (10th Cir. 2014) (unpublished); United States v.
Chatburn, 505 F. App’x 713, 716–17 (10th Cir. 2012) (unpublished).
We construe the omission in § 3583(e) of the retribution factor found in
§ 3553(a)(2)(A) to preclude a sentencing court from relying on the need for
retribution when modifying or revoking a term of supervised release and imposing a
new prison sentence for violations of supervised release. However, we affirm
because the district court’s reference to § 3553(a)(2)(A) did not affect Mr. Booker’s
substantial rights.
A. Section 3583(e) prohibits district courts from basing a revocation
sentence on § 3553(a)(2)(A).
When a sentencing statute mandates consideration of certain factors, it is
procedural error to consider unenumerated factors. See United States v. Smart, 518
F.3d 800, 803–04 (10th Cir. 2008); cf. Navajo Nation v. Dalley, 896 F.3d 1196, 1213
(10th Cir. 2018) (“[T]he enumeration of certain things in a statute suggests that the
legislature had no intent of including things not listed or embraced.” (quoting
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Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1034
& n.24 (10th Cir. 2003))). In Smart, we held that it was procedural error for a district
court to base an initial term of imprisonment on a sentencing factor not enumerated
in § 3553(a). Smart, 518 F.3d at 803–04. By its terms, § 3553(a) requires district
courts to consider those factors that were enumerated in that section of the statute.
Id.; see 18 U.S.C. § 3553(a) (“The court, in determining the particular sentence to be
imposed, shall consider . . . .”) (emphasis added). Because the statute “mandates
consideration of its enumerated factors,” we concluded that it “implicitly forbids
consideration of factors outside its scope.” Smart, 518 F.3d at 803–04.
The rule from Smart applies here because § 3583(e) also requires courts to
consider certain § 3553(a) factors when sentencing after a supervised release
violation. United States v. McBride, 633 F.3d 1229, 1231 (10th Cir. 2011) (noting
that “[b]efore deciding whether to revoke a term of supervised release and
determining the sentence imposed after revocation, the district court must consider”
the § 3553(a) factors enumerated in § 3583(e) (emphasis added)); Kelley, 359 F.3d at
1304 (noting that when modifying or revoking a term of supervised release, “the
district court is required to consider the factors set forth in various subsections of 18
U.S.C. § 3553(a)”). Because we read § 3583(e) to set forth those sentencing factors
that courts must consider, the subsection “implicitly forbids consideration” of any
other § 3553(a) factors when modifying or revoking a term of supervised release.
Smart, 518 F.3d at 803–04. So, the omission of § 3553(a)(2)(A) from the sentencing
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factors enumerated in § 3583(e) precludes a court from considering the need for
retribution when modifying or revoking a term of supervised release.1
We find support for our conclusion in cases discussing § 3583(c), a similarly
worded subsection that governs how a term of supervised release may be imposed.
18 U.S.C. § 3583(c). See Nat’l Credit Union Admin. v. First Nat. Bank & Tr. Co.,
522 U.S. 479, 501 (1998) (“[S]imilar language contained within the same section of a
statute must be accorded a consistent meaning.”). That subsection likewise requires
district courts to consider certain § 3553(a) factors, but not § 3553(a)(2)(A).2 In
Tapia v. United States, the Supreme Court addressed § 3583(c) in dicta, noting that
its import was to prohibit courts from “tak[ing] account of retribution (the first
1
We note that several of our sister circuits have concluded that mere reference
to § 3553(a)(2)(A) does not necessarily make a revocation sentence per se
unreasonable, but that reversible error may occur when the § 3553(a)(2)(A) factor
regarding retribution is the primary or predominating justification for a revocation
sentence. United States v. Lee, 650 F. App’x 948, 952 (10th Cir. 2016)
(unpublished) (collecting cases); see United States v. Sanchez, 900 F.3d 678, 684 n.5
(5th Cir. 2018); United States v. Phillips, 791 F.3d 698, 701 (7th Cir. 2015); United
States v. Webb, 738 F.3d 638, 642 (4th Cir. 2013); United States v. Young, 634 F.3d
233, 241 (3d Cir. 2011); United States v. Simtob, 485 F.3d 1058, 1062–64 (9th Cir.
2007). McBride and Kelley oblige us to chart a different path.
2
Section 3583(c) states:
The court, in determining whether to include a term of supervised release,
and, if a term of supervised release is to be included, in determining the
length of the term and the conditions of supervised release, shall consider
the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), (a)(6), and (a)(7).
(emphasis added).
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purpose listed in § 3553(a)(2)) when imposing a term of supervised release.” 564
U.S. 319, 326 (2011).3 And in Benvie, we approvingly quoted Tapia for the same
proposition. United States v. Benvie, 18 F.4th 665, 671 (10th Cir. 2021). We
remanded for reconsideration of four of the supervised release conditions because the
district court’s justification (1) did “not sufficiently explain, even in generalized
terms, how the special conditions further the requirements of [18 U.S.C.] § 3583(d),”
and (2) may have rested on “an impermissible rationale” because the district court
justified the special conditions as “sufficiently punitive.” Id. While it is true that
neither case squarely held that § 3583(c) prohibits a court from imposing an initial
term of supervised release for purposes of retribution, they both support the
proposition that when a statute uses mandatory language to direct a court to consider
some but not all § 3553(a) sentencing factors, it is procedural error to consider an
unenumerated factor. So, we consider both cases persuasive here.
B. The district court erred in sentencing Mr. Booker.
With the foregoing established, we conclude that the district court erred in
sentencing Mr. Booker. Our reason is straightforward: The omission of
§ 3553(a)(2)(A) from the list of sentencing factors enumerated in § 3583(e) means
that a district court may not consider the need for a revocation sentence to (1) “reflect
3
This court considers itself bound by dicta from the Supreme Court almost as
firmly as we are by its holdings. See United States v. Sutton, 30 F.4th 981, 987 (10th
Cir. 2022); Utah Republican Party v. Cox, 892 F.3d 1066, 1079 (10th Cir. 2018)
(noting that this rule applies with particular force when the “dicta is recent and not
enfeebled by later statements” (quoting Gaylor v. United States, 74 F.3d 214, 217
(10th Cir. 1996))).
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the seriousness of the offense,” (2) “promote respect for the law,” and (3) “provide
just punishment for the offense” when modifying or revoking a term of supervised
release. So, when the district court concluded that “a sentence outside the advisory
guideline range is necessary to . . . promote respect for the law, and provide just
punishment for the offense,” it necessarily erred. R. Vol. 2 at 23.
We reach our conclusion even though the bulk of the sentencing colloquy was
focused on permissible considerations. We think it clear that when a defendant
violates the terms of his supervised release, a district court can consider the conduct
that resulted in the violations of the conditions of supervised release when deciding
whether to revoke or modify the defendant’s supervised release. See United States v.
Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (“To ignore the new violation
underlying the revocation entirely would be to ignore a key predictor of a violator’s
potential for reintroduction into society without relapse.”). This information is
clearly relevant to assessing the “history and characteristics of the defendant,” 18
U.S.C. § 3553(a)(1), whether a sentence is likely to deter the defendant from
committing further crimes, id. § 3553(a)(2)(B), and whether the public needs to be
protected from the defendant, id. § 3553(a)(2)(C). See 18 U.S.C. § 3583(e) (listing
these factors as properly considered in the supervised-release revocation context);
U.S.S.G. Ch. 7, Pt. A(4) (2021) (“[T]he purpose of . . . supervised release should
focus on the integration of the violator into the community, while providing the
supervision designed to limit further criminal conduct.”).
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Here, the district court properly considered whether a term of imprisonment
would deter Mr. Booker and others from engaging in violative conduct, the need to
protect the public, the nature of Mr. Booker’s post-release conduct, and the number
of violations. See R. Vol. 2 at 20 (“I have never seen so many violations of
supervised release . . . [Y]ou really disregarded just about every term of your
supervised release. It was not successful at all.”); Id. at 21 (“It sounds like you’ve
have [sic] some history of drug use, and maybe you need some help coping with
that.”); Id. at 22–23 (“Defendant has shown repeated disregard for rules and
condition of his supervised release. He has continued to commit new law violations
and he has illegally possessed controlled substances, which he acknowledges. He has
on multiple occasions failed to report to his law enforcement contact as required by
the conditions of his supervision and he has also travelled outside the district of
supervision without permission of his probation officer.”). These are all permissible
bases for revocation of the initial supervised release and resentencing and were
relevant to determining (1) the extent to which Mr. Booker breached the trust of the
district court, see United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th
Cir. 2005), and (2) the likelihood that Mr. Booker would successfully abide by any
future supervised release conditions. See 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5); see generally U.S.S.G. Ch. 7, Pt. A (2021). But they do not
cancel out the fact that the court also justified Mr. Booker’s sentence in part with
direct quotation to factors that may not be considered when modifying or revoking a
term of supervised release.
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The government argues that the district court did not err because the omission
of § 3553(a)(2)(A) only prohibited the district court from punishing Mr. Booker
again for his original offense of conviction. As our prior discussion indicates, we
disagree. Here, the district court specifically justified Mr. Booker’s new sentence
only on his violation of the terms of supervised release when it quoted the prohibited
retribution factors. Clearly, violation of the terms of supervised release may be
considered by the district court in determining how to address a defendant’s violation
of those terms. The error here was in characterizing the new sentence, at least in
part, as retributive. That would be error whether the district court was considering
retribution for the original criminal conduct or for the behavior in violation of the
terms of supervised release, or both.
The government also relies on United States v. Douglas, but we find that
unpublished case distinguishable. 556 F. App’x 747, 750 (10th Cir. 2014)
(unpublished). For one, Douglas assumed that the district court erred when it
referred to “the need to punish” the defendant but concluded that any error was not
plain in light of a circuit split and no binding Tenth Circuit authority. Id. at 750–51.
And even though the Douglas panel expressed doubt that the district court’s reference
to punishment was error, it did so in part because the district court “never explicitly
invoked § 3553(a)(2)(A) in its fleeting nod to punishment.” Id. at 749. But that is
exactly what we have here: an explicit invocation of § 3553(a)(2)(A). So, Douglas
does not undermine our conclusion that the district court erred.
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In sum, we conclude that the district court erred because it directly quoted
from § 3553(a)(2)(A)—a factor it could not consider when modifying or revoking
Mr. Booker’s term of supervised release—when explaining the reasons for Mr.
Booker’s sentence.
C. This error did not affect Mr. Booker’s substantial rights.
Mr. Booker’s appeal, however, fails at the third step of the plain-error analysis
because he has not shown that the district court’s error affected his substantial rights.
“An error seriously affects the defendant’s substantial rights . . . when the defendant
demonstrates ‘that there is a reasonable probability that, but for the error claimed, the
result of the proceeding would have been different.’” United States v. Rosales-
Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (quoting United States v. Mendoza,
698 F.3d 1303, 1310 (10th Cir. 2012)); United States v. Cordery, 656 F.3d 1103,
1108 (10th Cir. 2011). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” United States v. Wolfname, 835 F.3d 1214,
1222 (10th Cir. 2016) (quoting Rosales-Miranda, 755 F.3d at 1258)).
Based on the record, we cannot conclude that Mr. Booker would have received
a lower sentence had the district court not quoted from § 3553(a)(2)(A). To be sure,
the quotation itself was error. But “a formulaic recitation of [a] statutorily
enumerated sentencing factor[] supplies little indication that a court lengthened a
sentence for [retributive] purposes.” United States v. Collins, 461 F. App’x 807, 810
(10th Cir. 2012) (unpublished). That is especially true here, where the district court
indicated that it was aware that not all § 3553(a) factors were applicable in the
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revocation sentencing context. R. Vol. 2 at 22 (“Nevertheless, the Court has
considered the sentencing guidelines along with all the factors set forth in [18 U.S.C.
§ 3553(a)], which are applicable in the revocation context pursuant to [18 U.S.C.
§ 3583(e)].”); see Collins, 461 F. App’x at 810.4
We considered a similar issue in Penn, where the district court justified a post-
revocation sentence as “just punishment for [the defendant’s] violation.” United
States v. Penn, 601 F.3d 1007, 1012 (10th Cir. 2010). We concluded that a single
reference to punishment did not affect the defendant’s substantial rights. Id. The
court did not rely on the need for punishment in setting forth his initial reasons for
the new sentence based upon violation of the terms of supervised release, and only
raised it after defense counsel objected to his client receiving a high-end sentence.
Id. “[B]ecause just punishment was not among the initial justifications the district
court gave,” we saw “no reason to conclude [the defendant’s] sentence would have
been different.” Id.Mr. Booker, citing Cordery, argues that because the district court referenced
one impermissible factor as a reason for setting his sentence, we must conclude that
“a lesser sentence [is] reasonably probable.” (Aplt. B. 15; Ry. B. 8.) We disagree.
4
Mr. Booker interprets the district court’s remarks differently, arguing that the
district court’s reference to “all the factors set forth” meant that it considered every
§ 3553(a) factor, including § 3553(a)(2)(A). (Aplt. B. 9–10.) But we think the
district court understood that not all § 3553(a) factors were applicable because it
indicated that it was referring to the factors “which are applicable in the revocation
context pursuant to [18 U.S.C. § 3583(e).]” R. Vol. 2 at 22. So, we disagree with
Mr. Booker’s interpretation of the district court’s remarks.
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In Cordery, the district court concluded that a sentence of “at least 56 months” was
necessary to qualify the defendant for rehabilitative services in prison. 656 F.3d at
1105. We concluded that the resulting 56-month sentence was error, because the
Supreme Court held in Tapia that courts may not impose or lengthen a sentence for
rehabilitative purposes. Id. at 1106. So, we agreed that “the court’s emphasis on its
calculation of [treatment] eligibility suggests a reasonable probability that the
sentence would have been lower without this consideration.” Id. at 1108.
Unlike in Cordery, the district court in this case did not emphasize its reliance
on an impermissible factor when sentencing Mr. Booker. It made a single
impermissible reference to § 3553(a)(2)(A) at the end of a lengthy and specific
discussion of the appropriate reasons why a statutory-maximum sentence was
necessary given Mr. Booker’s numerous supervised release violations and the fact
that he clearly needed help to comply with the law in the future. While Mr. Booker
casts the tenor of the district court’s sentencing remarks as retributive, we disagree.
The district court’s sentencing remarks were proper and—apart from the single
reference to § 3553(a)(2)(A)—focused on the sorts of considerations we expect
courts to weigh when deciding whether to revoke supervised release. So, we think
this case is closer to Penn than to Cordery.
We also find Farley distinguishable. United States v. Farley, 36 F.4th 1245,
1253 (10th Cir. 2022). There, the district court applied a six-level variance based on
an erroneous interpretation of the guidelines. Id. We found the district court’s error
affected the defendant’s substantial rights because it “was integral in the district
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court’s reasoning and acted as a limiting factor in how low” the court “was willing to
go with Mr. Farley’s sentence.” Id. But here, we have no indication that the district
court would have imposed a lower sentence had it not quoted from § 3553(a)(2)(A).
Had Mr. Booker raised this objection below, we are confident that the district
court would have clarified its remarks and excised the erroneous quotation before
imposing the same sentence. But because Mr. Booker “did not raise the issue when it
could have been meaningfully addressed,” we are constrained to review a record
“that has now become set in stone.” United States v. Thornton, 846 F.3d 1110, 1119
(10th Cir. 2017). Thus, plain error review is appropriate here and under that
standard, Mr. Booker’s claim fails.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by the district
court. We DENY Mr. Booker’s Motion to Expedite Ruling as moot.
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