                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       October 18, 2005
                               TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,
             Plaintiff - Appellee,                      No. 04-5066
 v.                                               (D.C. No. 03-CR-67-K)
 WESLEY DEAN STANDRIDGE,                                (N.D. Okla.)
             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before BRISCOE, McKAY, and HARTZ, 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.

      Defendant pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g), and to possessing an unregistered firearm in

violation of 26 U.S.C. § 5861(d). The district court then sentenced Defendant to

thirty-eight months’ imprisonment.


      *
       This order and judgment is not binding precedent, except under the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.
      Initially, Defendant appealed his conviction to this court on Fourth

Amendment grounds. We previously affirmed the district court’s judgment and

sentence on that issue. United States v. Standridge, No. 04-5066, 2004 WL

2944161, at *3 (10th Cir. Dec. 21, 2004). Subsequently, Defendant petitioned the

United States Supreme Court for a writ of certiorari. After granting Defendant’s

cert petition, the Supreme Court vacated the judgment and remanded the case to

this court for further consideration in light of its holding in United States v.

Booker, __U.S.__, 125 S. Ct. 738 (2005) (holding that the mandatory application

of the United States Sentencing Guidelines violates a Defendant’s Sixth

Amendment rights). Standridge v. United States, __U.S.__, 125 S. Ct. 1962

(2005).

      Consistent with the directive given to us by the Supreme Court, we ordered

supplemental briefing from the parties regarding sentencing. In his supplemental

brief, Defendant challenges his sentence as being imposed in violation of his

constitutional rights, as articulated in Booker. Because Defendant did not raise

this issue to the district court, we review for plain error. United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (citations

omitted). Under that standard, we will only reverse Defendant’s sentence if

Defendant can prove that the sentence imposed was (1) error, (2) which is plain,

(3) which affects his substantial rights, “and which (4) seriously affects the


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fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation

omitted).

      We have recognized two types of Booker errors–constitutional and non-

constitutional. Id. at 731-32. In this appeal, Defendant claims that the district

court committed non-constitutional error when it applied the United States

Sentencing Guidelines (“Guidelines”) in a mandatory fashion at sentencing.

      We agree with the parties that the district court’s mandatory application of

the Guidelines was plain error, thereby satisfying the first two prongs of

plain-error review. See id. We must therefore consider whether Defendant has

satisfied the third and/or fourth prongs of plain-error review.

      In this case, the district court, after reviewing the presentence report and

applying the Guidelines enhancement, determined that Defendant’s Guidelines

imprisonment range was from thirty-seven to forty-six months. After making this

determination, the sentencing court decided to impose a sentence of thirty-eight

months, “between the low end and the middle” of the Guidelines range. Supp.

Rec., Vol. 1, Sent. Tr. at 5. Based on this sentence, there is no reason to believe

that the district court would have imposed a less severe sentence with its new

post-Booker discretion. See United States v. Riccardi, 405 F.3d 852, 876 (10th

Cir. 2005) (denying defendant relief even when applying the less rigorous

harmless error test). The fact that the district court judge did not impose a


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sentence at the bottom of the Guidelines range indicates that there is no

reasonable probability that the court would reduce Defendant’s sentence on

remand post-Booker. See id. (“Having exercised his limited discretion under the

pre-Booker system to give [Defendant] the highest permissible sentence, there is

no reason to think the judge would exercise his now-greater discretion to reduce

the sentence.”) (citation omitted). Also, there are no remarks in the record which

demonstrate that the thirty-eight-month sentence was inappropriate in light of all

the circumstances. See id. Thus, Defendant fails to satisfy the third prong of the

plain error test. Having determined as much, we need not address whether

Defendant meets the fourth prong of the plain error test. See United States v.

Dowlin, 408 F.3d 647, 671 (10th Cir. 2005) (explaining that a party’s failure to

meet one prong of the test is a sufficient reason not to notice plain error).

      Accordingly, even though Defendant’s sentence was imposed in violation

of the Sixth Amendment standards set forth in Booker, the error did not violate

Defendant’s substantial rights and must be disregarded. We AFFIRM

Defendant’s sentence and REINSTATE all non-sentencing portions of our

previous opinion.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge


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