United States v. John Johnson , 154 F. App'x 544 ( 2005 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-2271
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * Eastern District of Missouri.
    John Johnson,                            *
    *       [UNPUBLISHED]
    Appellant.                  *
    ___________
    Submitted: October 12, 2005
    Filed: November 15, 2005
    ___________
    Before ARNOLD, BOWMAN, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    John Johnson appeals his sentence of 40 months' imprisonment following his
    conviction for being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1). He
    asserts that because the United States Sentencing Guidelines are unconstitutional, the
    district court1 erred in giving them effect in sentencing him. It is true that in United
    States v. Booker, 
    125 S. Ct. 738
    , 756 (2005), the Supreme Court held that, with
    exceptions not relevant here, it was a violation of the sixth amendment to enhance a
    guideline sentence on the basis of facts not found by a jury. But in this case no
    1
    The Honorable Donald J. Stohr, United States District Judge for the Eastern
    District of Missouri.
    enhancements were applied, so the basic Booker holding is of no avail to
    Mr. Johnson.
    We recognize that the district court nevertheless erred in passing sentence
    because it treated the guidelines as mandatory rather than advisory, see 
    Booker, 125 S. Ct. at 756-57
    . But Mr. Johnson raised no objection to his sentence below, so
    we can review it for plain error only. We have examined the transcript of the
    sentencing hearing carefully and have discerned nothing in it that would indicate a
    reasonable probability that the sentence would have been shorter had the district court
    been aware that the guidelines were merely advisory. Mr. Johnson is thus not entitled
    to plain error relief. See United States v. Pirani, 
    406 F.3d 543
    , 552 (8th Cir. 2005)
    (en banc), cert. denied, 
    126 S. Ct. 266
    (2005).
    Affirmed.
    ______________________________
    -2-
    

Document Info

Docket Number: 04-2271

Citation Numbers: 154 F. App'x 544

Filed Date: 11/15/2005

Precedential Status: Non-Precedential

Modified Date: 1/12/2023