                                                                        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       This order and judgment is not binding precedent, except under the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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