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

### December 20, 2005

Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 04-1232 JAMES LYLE HERRON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NO. 03-CR-161-B)

Philip A. Cherner, Law Office of Philip A. Cherner, Denver, Colorado, for the Defendant - Appellant. Martha A. Paluch, Assistant Attorney General (Willi am J. Leone, Acting Attorney General, with her on the brief), Office of the Unit ed States Attorney, Denver, Colorado, for the Plaintiff - Appellee.

Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and TYMKOVICH , Circuit Judge.

HARTZ , Circuit Judge.

Appellant James Herron was convicted by a jury of b eing a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to-2-

235 months’ imprisonment. On appeal he argues thatthe district court made the following errors: (1) it admitted into evidence a redacted version of his parole agreement, which improperly informed the jury of hi s parole conditions; (2) it denied his motion for a mistrial after a witness in dicated that he had a violent history; (3) it overruled his objections to portion s of the prosecutor’s final argument that appealed to the conscience of the com munity; (4) at sentencing it treated three prior convictions under the Colorado menacing statute as “violent felonies” under the Armed Career Criminals Act, 18 U.S.C. § 924(e); (5) it denied his request at sentencing for a downward adjustmentbased on acceptance of responsibility; (6) rather than leaving the matter to the jury, it determined that he had been convicted of violent felonies; and (7) it treated the Sentencing Guidelines as mandatory, contrary to United States v. Booker , 125 S. Ct. 738 (2005). We have jurisdiction under 28 U.S.C. § 129 1 and 18 U.S.C. § 3742(a). We affirm the conviction and sentence.
I. FACTS On September 7, 2002, Mr. Herron accompanied his gi rlfriend, Deborah Lynn, and her daughter to a sporting goods store inGrand Junction, Colorado, to purchase a firearm. He was on parole at the time a nd subject to supervision by the parole division of the Colorado Department of C orrections. Ms. Lynn testified that she sought the firearm for personal protection. Mr. Herron selected-3-

a Bersa .380 handgun from the display case, and the store clerk handed it to him. Both Ms. Lynn and Mr. Herron handled the gun; he pu lled the slide and sighted it. He asked the clerk about the gun’s features, such a s its “knock-down power” and suitability for personal protection. R. Vol. IV at173. Ms. Lynn testified that the two eventually chose the gun because it fit Ms. Lyn n’s hand. Ms. Lynn provided identification as the buyer and filled out the firearmtransaction report. She was cleared as a buyer whe n the clerk called the Colorado Bureau of Investigation for a background check. Mr . Herron paid for the gun and carried it from the store. The transaction was obs erved by Greg Thares, a former employee of a private corporation that contracts wi th the State of Colorado to monitor parolees. Mr. Thares recognized Mr. Herronand reported what he had seen to the local parole office. After the purchase Mr. Herron and Ms. Lynn went int o the desert for target practice. He showed her how to fire the gun, and a lso fired it himself. They then took the gun back to Ms. Lynn’s apartment and place d it in a safe, although they retrieved it later that day so he could show her ho w to clean it. Two days later Colorado Parole Officers John Jones and Karen Walters arrested Mr. Herron while he was at work and took h im to his apartment. Together with a Grand Junction police officer, they searched the apartment. The Bersa .380 was not there, but they found a receipt for another firearm, a .44-4-

magnum pistol. The second firearm was eventually t raced to its buyer, James Epple. The officers visited Mr. Epple and showed h im a photograph of Mr. Herron. He told the officers that he recognize d the man in the photograph and that he had sold the gun to him. Mr. Herron was indicted on two counts of possessionof a firearm by a prohibited person in violation of 18 U.S.C. § 922(g )(1). Before trial he stipulated that he had previously been convicted of an offense that carried a penalty of more than one year in prison. See Old Chief v. United States , 519 U.S. 172, 174 (1997) (in a § 922(g)(1) prosecution the district court mu st accept defendant’s stipulation to the bare fact of a prior felony conviction to av oid unfair prejudice caused by introduction of evidence revealing the nature of th e prior offense). At trial the government called eight witnesses to establish the above-recited events. It also proved that both weapons had been transported in interstate commerce, an element of the charged offenses. See § 922(g). Mr. Epple, however, was unable to identify Mr. Herr on at trial as the purchaser of the second weapon, the .44 magnum. Th e district court then struck Mr. Epple’s testimony as irrelevant, and at the clo se of the government’s evidence, it dismissed the charge relating to that weapon. But cf. Fed. R. Evid. 801(d)(1)(c) (prior statement of trial witness identifying a person is not hearsay); United States v. Ingram , 600 F.2d 260, 261 n.* (10th Cir. 1979) (same). A s for-5-

the first weapon, the Bersa .380, Mr. Herron’s theo ry of defense was that his possession was “innocent” because it was transitoryand for no illicit purpose. During the examination of Parole Officer Walters, t he government offered into evidence Mr. Herron’s parole agreement to esta blish that it was a condition of his parole that he not possess a firearm. Defen se counsel objected to the admission of the document, noting that it contained other parole conditions that might prejudice the jury. The district court agree d to redact many of the conditions but did not redact conditions requiring Mr. Herron to report regularly to his parole officer, to allow searches by his par ole officer, to submit to drug testing upon request, and not to possess firearms o r other deadly weapons. After the redactions defense counsel objected only to the inclusion in the redacted document of the text of the Colorado statute prohib iting possession of firearms by convicted felons. Much of the testimony of Parole Officer Walters rel ated to the .44 magnum. She explained that authorities were eager to locate it because they believed it was in the possession of a parolee with a history of vi olence. Expressing concern that the testimony would be understood as saying that itwas Mr. Herron who had a violent history, defense counsel objected and moved for a mistrial. The district court denied the motion but instructed the jury to disregard any reference to Mr. Herron’s history.-6-

In closing argument the prosecutor attacked Mr. Herron’s innocentpossession defense, calling it inapplicable in the circumstances of this case and explaining when, in his view, it might apply. Defe nse counsel objected to some of the prosecutor’s comments as improper “commentary on the jury’s verdict.” R. Vol. VI at 499. The district court overruled th e objections. The jury convicted Mr. Herron of possessing the Ber sa .380. At sentencing, Mr. Herron requested a downward departu re on various grounds, including his acceptance of responsibility for his offense. The district court denied the request. Also, it ruled that an enhance ment was required by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), bec ause Mr. Herron had three prior state convictions for menacing, see Colo. Rev. Stat. Ann. § 18-3-206 (1999) (amended 2000), which qualified as a “violent felony” under the ACCA. The court sentenced Mr. Herron to 235 months’ imprisonm ent, the minimum in the applicable guideline range.
II. DISCUSSION A. Evidentiary Rulings 1. Parole Agreement During trial the government sought to introduce Mr. Herron’s parole agreement to establish that Mr. Herron was aware th at it was a condition of his parole that he not possess a firearm. Defense coun sel did not challenge that1 Condition 4 stated in full:

Report: Parolee shall make written, and in person, reports as directed by the Parole Officer; and shall permit vi sits to his place of residence as required by the Parole Officer. a. Parolee further shall submit urinalysis or othe r tests for narcotics or chemical agents upon the request of th e Parole Officer, and is required to pay for all tests. b. Parolee further agrees to allow the Parole Offi cer to search his person, or his residence, or any premises underhis control, or any vehicle under his control. Aplt. Br., Ex. 26.

2 Condition 5 stated in full: Weapons: Parolee shall not own, possess, nor have under his control or in his custody, firearms or other deadly weapons

. Aplt. Br., Ex. 26. -7- purpose but objected to the admission of the agreem ent because he could be prejudiced by other terms of his parole, specifical ly referring to mental health evaluations, drug and alcohol treatment, and limitations on alcohol consumption. The district court redacted parts of the agreement but left intact both Condition 4, which required Mr. Herron to report regularly to hi s parole officer, to allow searches by his parole officer, and to submit to dr ug testing; 1 and Condition 5, which forbade him from possessing firearms. 2 After the court’s ruling, defense counsel objected only to the failure to redact from the agreement the text of Colo. Rev. Stat. Ann. § 18-12-108 (2003), the Colorado st atute barring possession of firearms by convicted felons. The district court o verruled the objection.-8-

Mr. Herron now challenges the inclusion of the textof the Colorado statute, Condition 4, and Condition 5 as violations of Feder al Rules of Evidence 403 (relevant evidence must be excluded if its probativ e value is substantially outweighed by the danger of unfair prejudice) and 4 04(b) (evidence of prior bad acts may not be admitted to prove the character of defendant to show action in conformity therewith). Because only the first chal lenge was presented below, we address it separately.

a. The Colorado Statute Mr. Herron argues that the text of § 18-12-108 incl uded on the second page of the parole agreement was irrelevant and potentia lly confusing. We need not resolve whether this portion of the agreement was r elevant to Mr. Herron’s innocent-possession defense, because any error in i ts inclusion in the redacted agreement was harmless. “Even if a court has admitted inadmissible evidence . . . a conviction will not be disturbed on appeal if that error is harmless.” United States v. Griffin , 389 F.3d 1100, 1104 (10th Cir. 2004)

. Such an error is harmless if it did not have “a substantial influence on the outcome” of the trial “or leaves one in grave doubt as to whether it had such effect .” Id. (internal quotation marks omitted). Mr. Herron does not complain about any s pecific language of the statute. And the substance of the statute—that Col orado law forbids convicted felons to possess firearms—was repeatedly presentedto the jury on other-9-

occasions without objection. We simply fail to see how a defendant being tried on a federal charge of being a convicted felon in p ossession of a firearm suffers unfair prejudice from evidence that such possessionalso violates state law. Mr. Herron argues that reference to the state statu te improperly showed that he was guilty of “other misconduct.” Aplt. Br. at 7. But, of course, there was no othermisconduct—the same act simply violated two virtua lly identical statutes.

b. Conditions 4 and 5 In his brief on appeal Mr. Herron challenged the fa ilure to redact Condition 5 from the parole agreement, and at oral argument he challenged the failure to redact Condition 4. Because he raised n either issue in the court below, our review is limited to plain error. See United States v. Youts , 229 F.3d 1312, 1320 (10th Cir. 2000). “Plain error occurs when th ere is (1) error, (2) that is plain, which (3) affects substantial rights, and wh ich (4) seriously affects the fairness, integrity, or public reputation of judici al proceedings.” United States v. Gonzalez-Huerta , 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (int ernal quotation marks omitted). Ordinarily, an error “af fects substantial rights” only if it “affected the outcome of the district court proc eedings.” Id. Even assuming that Mr. Herron can satisfy the first two prongs of the plain-error test, he cannot satisfy this third-prong requirement.-10-

Anything in Conditions 4 and 5 that may have been p rejudicial had already been presented to the jury from other sources, incl uding his own attorney. In his opening statement defense counsel referred to Mr. H erron’s status as a parolee, his urinalysis testing, and the parole agreement’s prohibition on his having a gun. Mr. Thares, the first trial witness, testified thathe recognized Mr. Herron from his former job at the parole office, where he colle cted urine samples, including Mr. Herron’s, for testing. Defense counsel did notobject to this testimony, and questioned Mr. Thares further about urinalysis duri ng cross-examination. Parole Officer Walters testified about the parole search o f Mr. Herron’s house. In these circumstances, we cannot see how admission of the r edacted parole agreement could have affected the verdict. Cf. Griffin , 389 F.3d at 1104-05 (admission of parole agreement was harmless error). 2. “Violent History” The testimony of Parole Officer Walters related in large part to the second weapon, the .44 magnum, and the search for parolee Gary Adamson after the parole officers had received information that it wa s in his possession. During redirect examination the prosecutor questioned her about the urgency of this search: Q: Ms. Walters, was there a particular factor in thi s case that gave an immediacy to parole’s role in the investigation? A: Yes, there was. There was a public safety factorof a parolee with a violent history possibly in possession of we apons.-11-

Q: And when you believed that Mr. Adamson may have b een in possession of a weapon, it is then that you took th e steps that you recounted? A: Do you mean Mr. Herron? Q: No, the focus on what Mr. Adamson and why didn’t you focus on Mr— R. Vol. V at 297. Defense counsel moved for a mist rial, arguing that Parole Officer Walters had just told the jury that Mr. Her ron had a violent history, which was highly prejudicial. The district court denied the motion but instructed the jury, “Ladies and gentlemen, I have stricken from t he record and taken entirely out of the case any reference to Mr. Herron’s histo ry, any reference at all in that respect as testified by this witness, and you will disregard it entirely.” R. Vol. V
at 298. We review for abuse of discretion the denial of a m otion for mistrial. See United States v. Kravchuk, 335 F.3d 1147, 1154 (10th Cir. 2003). “A mistria l may only be granted when a defendant’s right to a f air and impartial trial has been impaired.” Id. at 1155. As we read the record, the “parolee with a violent history” was Mr. Adamson, not Mr. Herron. The prev ious eight pages of testimony focused on Mr. Adamson, not Mr. Herron. Moreover, the district court immediately instructed the jury to disregard any re ference to “Mr. Herron’s history.” R. Doc. V. at 298. “We presume that jur ors will follow clear instructions to disregard evidence unless there is an overwhelming probability that the jury will be unable to follow the court’s instructions, and a strong-12-

likelihood that the effect of the evidence would be devastating to the defendant.” United States v. Caballero , 277 F.3d 1235, 1243 (10th Cir. 2002) (internal quotation marks omitted). We see no reason to reje ct the presumption in the circumstances presented here. The district court d id not abuse its discretion in refusing to grant a mistrial. See United States v. Maynard, 236 F.3d 601, 606-07 (10th Cir. 2000) (no abuse of discretion in denying mistrial when judge gave strong curative instruction).

3. Closing Argument Throughout trial Mr. Herron’s defense was that he h ad possessed the Bersa .380 innocently–that is, that his possession was on ly transitory and for no illicit purpose. Defense counsel sought and obtained the f ollowing jury instruction: Instruction 18. It is a defense to the charge of unlawful possessio n of a firearm that the defendant’s possession of the fire arm constituted innocent possession. Possession of a firearm constitutes innocent posses sion where: 1. The firearm was obtained innocently and held with no illicit purpose; and 2. Possession of the firearm was transitory, i.e., i n light of the circumstances presented there is a good basis t o find that the defendant took adequate measures to rid hi mself of possession of the firearm as promptly as reasonably possible. If you find that the defendant possessed a firearm specified in Count 1 and that possession constituted innocent po ssession, you should find the defendant not guilty.-13-

R. Vol. VI at 483-84. Mr. Herron now contends that the district court sho uld have sustained two objections to statements regarding this defense by the prosecutor during closing argument, and that as a result he was denied his ri ght to a fair trial. While arguing to the jury that Mr. Herron’s innocent-poss ession defense was inapplicable to the facts of the case, the prosecut or said, “This defense was meant for different circumstances. Let’s think of an exa mple. If there’s a felon”—at which point Mr. Herron objected, saying that the co urt had “instructed the jury on this defense based on the evidence in this case.” R. Vol. VI at 498. The objection was overruled, and the prosecutor continu ed: Let’s talk about an example. If there’s a felon wa lking down the street, and he crosses a playground full of childre n, and he sees in the playground a gun, he picks it up, and he immediatel y calls the police and says, I found a gun, and turns it over to them. I could understand why in that case the guy had innocent motives and w e might consider this defense. We’re not even close to that here. Finally, on this issue, you must find that Mr. Herr on—I think it’s impossible to find that Mr. Herron acquired the gun innocently. He simply didn’t. R. Vol. VI at 498-99. Mr. Herron now argues that t his statement improperly told the jurors that they could disregard Instruction No . 18. The prosecutor continued the argument by pointing o ut that Mr. Herron knew from his parole agreement that he was not allo wed to handle a gun for any reason, that he willingly and knowingly handled the gun in the store instead of-14-

asking the clerk to assist Ms. Lynn, and that he di d not dispose of the gun immediately after handling it but carried it out of the store and later fired it. The prosecutor then said, “I think that if you acquit o n this basis what you are saying is that felons can hold and shoot guns so long as”— at which point Mr. Herron again objected, saying that a “commentary on the ju ry’s verdict” was inappropriate. R. Vol. VI at 499. The district co urt overruled this objection as well and the prosecutor proceeded: What you’re saying, if you find this defense applic able, is that so long as there’s some basis for concluding that a fe lon was helping a friend, he can hold a gun even though there’s no im minent risk of harm to him or that friend. This is not what Congr ess intended. Under the circumstances of this case, as soon as Mr . Herron picked up the gun and held it in his hands, he broke the l aw. R. Vol. VI at 500. Mr. Herron did not object furth er or request a mistrial. He now claims that this second remark was an improper appeal to the “conscience of the community.” Aplt. Br. at 12. When assessing allegations of prosecutorial miscond uct, “[w]e must first examine whether the prosecutor's conduct was in fac t improper, and if so, then determine whether the error was harmless beyond a r easonable doubt.” United States v. Pulido-Jacobo , 377 F.3d 1124, 1134 (10th Cir. 2004) (internal qu otation marks, brackets, and ellipses omitted). We determi ne whether such an error was harmless beyond a reasonable doubt by considering “ the curative acts of the-15-

district court, the extent of the misconduct, and t he role of the misconduct within the case as a whole .” Id. We have long held that “[p]rosecutors have consider able latitude to respond to an argument made by opposing counsel.” United States v. Hernandez-Muniz , 170 F.3d 1007, 1012 (10th Cir. 1999); United States v. Merryman , 630 F.2d 780, 789 (10th Cir. 1980) (“It is well settled that the attorney prosecuting the case on behalf of the government is authorized to respond t o exculpatory arguments made by defendants during closing arguments.”). Most of the prosecutor’s comments were proper argument based on the court’s instructi on. The prosecutor was simply arguing that the innocent-possession defense did not apply to the facts of Mr. Herron’s case. The only somewhat troubling com ment by the prosecutor was that if the jury adopted the innocent-possession de fense, a convicted felon could possess a gun “as long as there’s some basis for co ncluding that [the] felon was helping a friend.” R. Vol. VI at 500. It is impro per to argue that an acquittal in accordance with the court’s instructions would be an unacceptable result. But the prosecutor did not exceed the bounds of propriety. The argument did not challenge the authority of the court’s instructions . After pointing to the salient facts that were inconsistent with the innocent-poss ession defense set forth in the instructions, the prosecutor was trying to emphasiz e the absurdity of recognizing-16-

the defense in such circumstances. The language us ed was unfortunate but tolerable in the excitement of final argument.

4. Cumulative Error Mr. Herron urges that we consider the above “errors ” cumulatively to determine whether a new trial is warranted. “A cum ulative-error analysis aggregates all errors found to be harmless and anal yzes whether their cumulative effect on the outcome of the trial is such that col lectively they can no longer be determined to be harmless.” United States v. Toles , 297 F.3d 959, 972 (10th Cir. 2002) (internal quotation marks omitted). As the a bove analysis shows, there was no cumulative error here. B. Application of the ACCA 1. Violent Felony Mr. Herron next claims that the district court erre d in ruling that a violation of the Colorado menacing statute, Colo. Rev. Stat. Ann. § 18-3-206 (1999) (amended 2000), qualifies as a violent felony unde r the ACCA. The ACCA mandates a minimum 15-year sentence for a violation of § 922(g) if the violator has three prior violent-felony convictions. See 18 U.S.C. § 924(e)(1). Mr. Herron had three state convictions for menacing . We review the district court’s ruling de novo. See United States v. Moore , 401 F.3d 1220, 1226 (10th Cir. 2005).-17-

The ACCA defines aviolent felonyas any crime punishable by imprisonment for a term exc eeding one year, or any act of juvenile delinquency involving the us e or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult , that—(i) has as an element the use, attempted use, or threatened us e of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves c onduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The key phrase here is “ threatened use of physical force.” The actual use of force is not necessary t o make a crime a violent felony ; all that is required is the threatof such force against another’s person. The Supreme Court inTaylor v. United States , 495 U.S. 575 (1990), held that to determine whether a crime qualifies as a vi olent felony under the ACCA, a court must ordinarily use “a formal categorical app roach, looking only to the statutory definitions of the prior offenses, and no t to the particular facts underlying those convictions.” Id. at 600. But cf. Shepard v. United States , 125 S. Ct. 1254, 1263 (2005) (in certain circumstances a court may look to documents and records pertaining to the offense). The Colora do menacing statute reads: A person commits the crime of menacing if, by any t hreat or physical action, he or she knowingly places or attempts to p lace another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, if committed by the use of a de adly weapon it is a class 5 felony. Colo. Rev. Stat. Ann. § 18-3-206 (1999) (amended 20 00). The Colorado Criminal Code defines “serious bodily injury” as-18-

bodily injury which, either at the time of the actu al injury or at a later time, involves a substantial risk of death, a subst antial risk of serious permanent disfigurement, a substantial risk of prot racted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree. Id. § 18-1-901(p) (2003). Mr. Herron’s convictions were undoubtedly for viole nt felonies. He “knowingly place[d] or attempt[ed] to place anotherperson in fear of imminent serious bodily injury . . . by the use of a deadly weapon.” Id. § 18-3-206. This conduct easily satisfies the requirement of “the th reatened use of physical force against the person of another,” under the ACCA. 18 U.S.C. § 924(e)(2)(B)(i). “Knowingly placing someone in fear . . . by the use of a deadly weapon” certainly constitutes threatening someone. Mr. Herron argues that menacing cannot be a violent felony because under Colorado law the term deadly weapon is defined so broadly as to include a fist, foot, or whiskey bott le, so that menacing includes conduct such as telling someone over the telephone “that one intends to punch or kick them the next day, or within the next few hour s, depending on the interpretation of the phrase ‘imminent.’” Aplt. Br . at 17. But this observation is beside the point. A threat to kick or strike someo ne comes within the ACCA definition regardless of whether a foot or bottle i s a deadly weapon. We reject Mr. Herron’s argument. C. Acceptance of Responsibility-19-

Mr. Herron claims that the district court erred by failing to grant a downward adjustment under the Sentencing Guidelines for acceptance of responsibility. He argues that he is entitled to t he adjustment because he admitted his “factual guilt” in pretrial statements to Parol e Officer Walters (which he later successfully moved to suppress) and again at his parole revocation hearing. Aplt.
Br. at 22. We review under a clearly-erroneous standard a district court’s finding that a defendant is not entitled to such an adjustment. See United States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004). The districtcourt’s refusal to grant the downward adjustment is “entitled to great deference on review.” Id . (internal quotation marks omitted). Under the Sentencing Guidelines the acceptance-of-r esponsibility adjustment is to be granted “[i]f the defendant cle arly demonstrates acceptance of responsibility for his offense.” U.S. Sentencing G uidelines Manual § 3E1.1(a) (2004). Application Note 2 states that the adjustm ent “is not intended to apply to a defendant who puts the government to its burden o f proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” Id. cmt. n.2. Mr. Herron correctly notes, however, th at conviction at trial does not automatically prevent him from seeking the adjustment; in “rare situations” the adjustment may still be granted even though-20-

the defendant has gone to trial. Id. Application Note 2 gives an example of such a rare situation: “where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt ( e.g. , to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).” Id. The district court found that Mr. Herron did not ad mit factual guilt. Three elements must be proved to establish a violation of 18 U.S.C. § 922(g)(1): “(1) the defendant was convicted of a felony; (2) the de fendant thereafter knowingly possessed a firearm, and (3) possession was in or a ffecting interstate commerce.” Griffin , 389 F.3d at 1104. Mr. Herron stipulated only to the first element. The district court found at the sentencing hearing thathe had challenged the knowingpossession element of the crime; at no time during the trial did he concede that he had ever handled the gun, carried it out of the sto re, or fired it. The prosecution accordingly called witnesses to establish these fac ts, and defense counsel tested their testimony on cross-examination. The districtcourt also found that Mr. Herron “[c]learly and indisputably” challenged the jurisdictional element of both offenses. R. Supp. Vol. I at 10. The governm ent called two witnesses to establish that the guns had moved in interstate com merce. While the prosecution was examining Mr. Atzmiller, the chief financial of ficer of the manufacturer of the .44 magnum, the court called counsel to the ben ch, where the following colloquy occurred:-21-

THE COURT: You can go through this unless the defens e is willing to stipulate that the pistol in question was transported in and affecting interstate commerce. [DEFENSE COUNSEL]: I would like to do that, possibly , except I don’t think Mr. Herron wants to do it, and I am going to respect his wishes on that. . . . THE COURT: We’ll go through this painful process, I guess. R. Vol. V at 309. Moreover, the court noted that Mr. Herron never cla imed that the trial was held only to preserve issues unrelated to factual g uilt so that those issues could be appealed. Accordingly, the court determined that t he downward adjustment was not warranted. Based on this record, we would findan abuse of discretion if the district court had

granted the downward adjustment. The district cou rt’s determination was certainly not clearly erroneous.
D. Prior Convictions Mr. Herron next claims that the district court viol ated his Sixth Amendment and Due Process rights when it, rather than the jury, determined that he had three prior violent-felony convictions. This claim is fo reclosed by United States v.
Moore , 401 F.3d 1220 (10th Cir. 2005).
E. Booker Error-22-

While Mr. Herron’s appeal was pending, the Supreme Court issued its opinion in United States v. Booker , 125 S. Ct. 738 (2005). Bookerheld that “[a]ny fact (other than a prior conviction) which i s necessary to support a sentence exceeding the maximum authorized by the fa cts established by a plea of guilty or a jury verdict must be admitted by the de fendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. “As a result, the . . . mandatory application of the [United States Sentenc ing] Guidelines violates the Sixth Amendment when judge-found facts, other than those of prior convictions, are employed to enhance a sentence.” Gonzalez-Huerta , 403 F.3d at 731. The Supreme Court in Bookertherefore “excised 18 U.S.C. § 3553(b)(1), which m ade the imposition of a Guidelines sentence mandatory i n the vast majority of cases.” Id. Consequently, federal district courts “are still re quired to consider the Guidelines in determining sentences, but they are n ot required to impose a sentence within the Guidelines range.” Id. Mr. Herron does not argue that his Sixth Amendment rights were violated by judicial fact-finding; instead, he asserts that the district court erred under Bookerby sentencing him under a mandatory application of the Sentencing Guidelines. When “the resulting [mandatory] senten ce was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prior conviction,” this court uses the te rm “nonconstitutional Booker-23-

error” to identify the error. Id. at 731-32. Mr. Herron concedes that he did not raise this issue in the district court, so our revi ew is for plain error. See Fed. R. Crim. P. 52(b); Gonzalez-Huerta , 403 F.3d at 732. “Plain error occurs when there is (1) error, (2) th at is plain, which (3) affects substantial rights, and which (4) seriouslyaffects the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta , 403 F.3d at 732 (internal quotation marks omitted). The governmentconcedes the first two prongs of the plain-error test, but argues that Mr. Herron has not met the third or fourth prongs. Because Mr. Herron cannot satisfy the fourth prong of plain-error review, we need not consider the third. See id. at 736. “In an instance of non-constitutional error the sta ndard for satisfying the fourth prong of the plain error test is demanding. A party that fails to raise an argument in the district court must show that allow ing a non-constitutional error to stand would be particularly egregious and would constitute a miscarriage of justice.” United States v. Jones , 425 F.3d 1274, 1276 (10th Cir. 2005) (internal quotation marks and citation omitted). “Whether the district judge would have imposed a sentence lower than the Guidelines range is . . . a key consideration . . . .” Id. at 1276 . Mr. Herron has not met this burden. The district c ourt did comment at the sentencing hearing that it was required to apply th e Sentencing Guidelines and-24-

that the nature of Mr. Herron’s case involved “some mitigating circumstances.” R. Supp. Vol. I at 49. But the district court also described Mr. Herron as “the type of person who quintessimally [sic] should not have possessed this weapon,” R. Supp. Vol. I at 35, and noted, “I do have a resp onsibility to protect the public from an individual who simply refuses or cannot con form conduct to the law.” R. Supp. Vol. I at 50. Further, although the distr ict court sentenced Mr. Herron at the bottom of the guidelines range, it gave no indi cation that it would exercise greater leniency if given the chance. See United States v. Nguyen , 413 F.3d 1170, 1184-85 (10th Cir. 2005). “Nothing in the record s uggests that were this court to remand, the district judge would not simply reimpos e the same sentence, nor does anything in the record suggest any unfairness in th e sentencing.” Jones , 425 F.3d at 1276. “Mandatory treatment of the Guidelines in this case did not seriously affect the fairness, integrity, or public reputatio n of judicial proceedings.” Id. at 1277

. Accordingly, we affirm Mr. Herron’s sentence.
III. CONCLUSION We AFFIRM Mr. Herron’s conviction and sentence.