Mandatory application of sentencing guidelines is plain error but does not necessarily require remand for resentencing

SENTENCING United States v. Jones, No. 03-3377, ___ F.3d ___ (10th Cir. Oct. 13, 2005)(Kansas). Remand from Supreme Court for reconsideration of sentence in light of United States v. Booker, 125 S.Ct. 738 (2005). HELD: District court’s mandatory application of sentencing guidelines was error under Booker. However, error was not reversible plain error. Where judge’s comments at sentencing indicated that he considered same factors in imposing original sentence under pre-Booker mandatory sentencing system that he would be required to consider upon remand for resentencing under post-Booker discretionary scheme, defendant failed to meet burden under plain error test of showing that denial of remand for resentencing would seriously affect fairness, integrity, or public reputation of judicial proceedings. Read the opinion here.