                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      September 23, 2005
                                   TENTH CIRCUIT
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 04-4133
 ANTHONY LEO MONTES,                               (D.C. No. 2:03-CR-610)
                                                          (D.Utah)
          Defendant-Appellant.




                                ORDER AND JUDGMENT      *




Before BRISCOE, LUCERO,            and MURPHY , Circuit Judges.


      Defendant Anthony Leo Montes appeals his sentence in light of the United

States Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738

(2005). E xercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a),




      *
       This order and judgment is not binding precedent, except under the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.
we affirm Mr. Montes’s sentence. **

      Pursuant to a plea agreement with the government, Mr. Montes pled guilty

to one count of theft of firearms from a federally licensed firearms dealer, in

violation of 18 U.S.C. § 922(u), and to one count of being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). After Mr. Montes stipulated to

the facts underlying the calculation of his sentence, the district court sentenced

Mr. Montes to 162 months. This sentence fell at the high end of Mr. Montes’s

guideline range of 130-162 months.

      The district court sentenced Mr. Montes prior to the Supreme Court’s

decision in Booker, which rendered the Sentencing Guidelines advisory, rather

than mandatory. 125 S.Ct. at 756-57. Relying on Booker, Mr. Montes raises one

issue on appeal: whether the district court’s treatment of the Sentencing

Guidelines as mandatory constitutes structural error. Mr. Montes acknowledges

that this argument is foreclosed by this court’s en banc decision in United States

v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005). Mr. Montes, however, states

that he raises the issue solely to preserve it for possible Supreme Court review.

      As Mr. Montes correctly points out, we held in Gonzalez-Huerta that non-



      **
        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.

                                          2
constitutional error occurs when the district court treats the Guidelines as

mandatory, and that “non-constitutional Booker error is not structural error.” 403

F.3d at 731-32, 734. Accordingly, we AFFIRM Mr. Montes’s sentence.



                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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