-
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 John Johnson, * * [UNPUBLISHED] Appellant.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Precedential Status: Non-Precedential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