Constitutional Booker error does not require remand for resentencing where sentence has already been served

SENTENCING United States v. Westover, No. 03-3287, ___ F.3d ___ (10th Cir. Jan. 30, 2006)(Kansas). Appeal of one year sentence for making false statements within jurisdiction of federal agency and embezzling government funds in conjunction with receipt of public housing assistance and food stamps in violation of 18 U.S.C. §§ 1001 and 641. HELD: While defendant’s sentence was result of plain error of constitutional dimension in violation of United States v. Booker, 543 U.S. 220 (2005), error was insufficient to require remand for resentencing because court of appeals need only exercise discretion to correct plain error if error affects fairness, integrity, or public reputation of judicial proceedings. In this instance, by time of decision on appeal, defendant had already served term of imprisonment. Therefore, neither fairness, integrity, nor public reputation of judicial proceedings could be further affected by remand for resentencing because district court could not “unring the bell” by causing defendant to serve shorter term. Read the opinion here.