                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       October 25, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 04-6292
 v.
                                                   (D.C. No. CR-03-70-T)
                                                        (W.D. Okla.)
 RANDOLPH ADRIAN JACKSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Randolph Adrian Jackson appeals his sentence of five years imprisonment

imposed following his guilty plea to interstate travel with intent to promote

unlawful activity in violation of 18 U.S.C. § 1952(a)(3) and aiding and abetting in

violation of 18 U.S.C. § 2. He argues that the district court’s mandatory

application of the U.S. Sentencing Guidelines violates the Supreme Court’s

decision in United States v. Booker, 125 S.Ct 738 (2005). He further argues that


      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Booker error amounts to structural error, and therefore his case should be

remanded for resentencing. He acknowledges this court recently held that non-

constitutional Booker error does not constitute structural error. United States v.

Gonzalez-Huerta, 403 F.3d 727, 733-34 (10th Cir. 2005) (en banc). He raises this

issue exclusively to preserve an appeal to the Supreme Court. Because Jackson

did not challenge his sentence on Booker grounds below, we review the non-

constitutional Booker error that results from a mandatory application of the

sentencing guidelines for plain error. Gonzalez-Huerta, 403 F.3d at 732. Jackson

does not argue on appeal that Booker error affected his substantial rights or

affected the fairness, integrity, or public reputation of judicial proceedings. As

such, we decline to remand for resentencing.

         Accordingly, we AFFIRM the sentencing order entered by the district

court.


                                              ENTERED FOR THE COURT




                                              Carlos F. Lucero
                                              Circuit Judge




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