                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 25 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 05-1070
                                                    (D.C. No. 99-CR-207-S)
    THOMAS R. LAWRENCE,                                    (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before EBEL, KELLY, and MURPHY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Thomas R. Lawrence appeals a district court decision denying release

pending appeal. We affirm.


*
      This order and judgment is not binding precedent, except under the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.
      In 2002, Lawrence was convicted of wire fraud and related offenses and

sentenced to 72 months’ imprisonment. His appeal from that conviction is

pending before this court. See United States v. Lawrence, No. 02-1259 (argued

Mar. 11, 2004).

      Relying primarily on the Supreme Court’s decision in Blakely v.

Washington, 124 S. Ct. 2531 (2004), Lawrence maintains that his appeal from his

conviction is likely to result in a reduction of his sentence to a term less than the

expected duration of the appeal. See 18 U.S.C. § 3143(b)(1)(B)(iv) (providing for

release pending appeal if the defendant can show, among other factors, that he has

raised a claim on appeal that is “likely to result in . . . a reduced sentence to a

term of imprisonment less than the total of the time already served plus the

expected duration of the appeal process”). We disagree. In United States v.

Booker, 125 S. Ct. 738 (2005), the Supreme Court declared the Federal

Sentencing Guidelines constitutionally infirm under Blakely and provided, as a

remedy for this infirmity, that district courts should treat the Guidelines as

advisory rather than binding. See Booker, 125 S. Ct. at 749-50, 764-65.

Consequently, even if the district court committed plain error under Blakely (a

question we need not decide in this proceeding), Booker would permit the court to

reimpose the same sentence on remand. See United States v. Rodriguez, 398 F.3d

1291, 1300-01 (11th Cir. 2005). We therefore cannot say that it is likely that


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Lawrence’s appeal from his conviction is likely to result in a reduction of his

sentence.

      For these reasons, the judgment of the district court is affirmed.



                                                    ENTERED FOR THE COURT
                                                    PER CURIAM




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