* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### August 3, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 04-4154

v. (D.C. No. 1:04-CR-06-PGC) SHAWN TYLER FERGESON, (D. Utah)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. Defendant was indicted for possession of a controll ed substance with intent to distribute in violation of 21 U.S.C. § 841 (Count I), carrying a firearm during a drug-trafficking crime in violation of 18 U.S.C. § 924(c) (Count II), and2 As part of the plea agreement, the government dropp ed Count III of the

indictment. -2- possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) (Count III). Defendant pled guilty to Counts I and II of the ind ictment. 2 The district court then sentenced Defendant to 84 months’ imprisonmentfor Count I and to 60 months’ imprisonment on Count II, to be served cons ecutively. On January 5, 2004, officers from the Layton Police Department received a citizen’s complaint about two men “shooting up” in a Wal-Mart parking lot. When they arrived at the parking lot, the officers found syringes that were reportedly thrown from Defendant’s car. The officers then arr ested Defendant. The officers searched Defendant’s vehicle incident to the arrest and found a .25 caliber semi-automatic handgun containing a ful ly loaded magazine. The search of the car also yielded eight baggies contai ning a substance the officers believed to be methamphetamine, stolen checks, iden tification cards, and other materials commonly associated with illegally produc ing and passing checks. After testing the substance contained in the seized baggies, the Utah State Crime Laboratory determined its total weight was 26 .2 grams, which contained 94 percent solids and consisted of 95 percent pure methamphetamine. In other words, the substance found in the seized baggies wa s 23.3 grams of pure methamphetamine.-3-

Pursuant to a plea agreement, Defendant pled guilty to Counts I and II of the indictment. The presentence report prepared pr ior to sentencing also concluded that the sample contained 23.3 total gram s of pure methamphetamine. At sentencing, the district court ultimately arrive d at an applicable Guidelines range of 84 to 105 months’ incarceration . The district court sentenced Defendant at the low end of the Guidelines range (8 4 months) on Count I and sentenced Defendant to 60 months’ imprisonment on C ount II (the mandatory statutory minimum), with the counts to be served co nsecutively. Defendant appeals that sentence to this court. On appeal, Defendant challenges his sentence as bei ng imposed in violation of his constitutional rights, as articulated in United States v. Booker ,__U.S.__, 125 S. Ct. 738 (2005). Because he did not raise th is 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) (citation omitted). Under that standard, we will only reverse Defendant’s sentence if Defendant can prove that th e sentence imposed was (1) error, (2) which is plain, (3) which affects his su bstantial rights, (4) sufficient to warrant an exercise of our discretion to correct th e error so long as it does not seriously affect the “fairness, integrity or public reputation of the judicial proceedings.” Id. (quotation omitted). We have recognized two types of Bookererrors–constitutional and non-3 Although Defendant argued constitutional error in h is initial brief on

appeal, he appears to abandon his constitutional er ror argument in his supplemental brief when he states, “[W]hile it was not error for the court to calculate Mr. Fergeson’s sentencing guideline range by considering facts not found by the jury, it was error for the district co urt to impose sentence under the erroneous assumption that the guidelines were mandatory.” Aplt. Supp. Br. at 3. Therefore, we do not address constitutional error. -4- constitutional. Id. at 731-32. In this appeal, Defendant claims that t he district court committed non-constitutional error when it ap plied the Guidelines in a mandatory fashion at sentencing. 3 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 ha s satisfied the third and/or fourth prongs of plain-e rror review. While it is debatable whether Defendant can satisfy the third prong of the plain error test because the only evidence presente d to demonstrate prejudice was that he was sentenced at the low end of the Guideli ne range, we need not decide that because he fails to meet the fourth prong of t he test. See Dowlin, 408 F.3d at 671 (explaining that a party’s failure to meet one prong of the test is a sufficient reason not to notice plain error). Under the fourt h prong of the plain error test, Defendant must establish that “the forfeited error . . . affect[s] [his] substantial rights.” United States v. Olano , 507 U.S. 725, 732 (1993) (internal quotation marks omitted). We will only correct a plain erroraffecting substantial rights if-5-

the error “seriously affect[s] the fairness, integr ity or public reputation of judicial proceedings.” Id. at 736 (quotation omitted). This power to correcta forfeited error should be used sparingly and only “in those c ircumstances in which a miscarriage of justice would otherwise result.” Id. (quotation omitted). Defendant fails to point to adequate record evidenc e suggesting such a miscarriage of justice. See Gonzalez-Huerta , 403 F.3d at 737.
AFFIRMED. Entered for the Court

Monroe G. McKay Circuit Judge