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 (William J. Leone, Acting Attorney

General, with her on the brief), Office of the United 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 being 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 that the district court made the

following errors: (1) it admitted into evidence a redacted version of his parole

agreement, which improperly informed the jury of his parole conditions; (2) it

denied his motion for a mistrial after a witness indicated that he had a violent

history; (3) it overruled his objections to portions of the prosecutor’s final

argument that appealed to the conscience of the community; (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 adjustment based 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. § 1291 and 18 U.S.C. § 3742(a). 

We affirm the conviction and sentence.

I. FACTS

On September 7, 2002, Mr. Herron accompanied his girlfriend, Deborah

Lynn, and her daughter to a sporting goods store in Grand Junction, Colorado, to

purchase a firearm. He was on parole at the time and subject to supervision by

the parole division of the Colorado Department of Corrections. 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 pulled the slide and sighted it. 

He asked the clerk about the gun’s features, such as its “knock-down power” and

suitability for personal protection. R. Vol. IV at 173. Ms. Lynn testified that the

two eventually chose the gun because it fit Ms. Lynn’s hand.

Ms. Lynn provided identification as the buyer and filled out the firearmtransaction report. She was cleared as a buyer when 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 observed by Greg Thares, a former

employee of a private corporation that contracts with the State of Colorado to

monitor parolees. Mr. Thares recognized Mr. Herron and reported what he had

seen to the local parole office.

After the purchase Mr. Herron and Ms. Lynn went into the desert for target

practice. He showed her how to fire the gun, and also fired it himself. They then

took the gun back to Ms. Lynn’s apartment and placed it in a safe, although they

retrieved it later that day so he could show her how to clean it.

Two days later Colorado Parole Officers John Jones and Karen Walters

arrested Mr. Herron while he was at work and took him 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 traced to its buyer, James

Epple. The officers visited Mr. Epple and showed him a photograph of

Mr. Herron. He told the officers that he recognized the man in the photograph

and that he had sold the gun to him.

Mr. Herron was indicted on two counts of possession of 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 must accept defendant’s stipulation

to the bare fact of a prior felony conviction to avoid unfair prejudice caused by

introduction of evidence revealing the nature of the 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. Herron at trial as the

purchaser of the second weapon, the .44 magnum. The district court then struck

Mr. Epple’s testimony as irrelevant, and at the close 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). As for
-5-

the first weapon, the Bersa .380, Mr. Herron’s theory of defense was that his

possession was “innocent” because it was transitory and for no illicit purpose. 

During the examination of Parole Officer Walters, the government offered

into evidence Mr. Herron’s parole agreement to establish that it was a condition

of his parole that he not possess a firearm. Defense counsel objected to the

admission of the document, noting that it contained other parole conditions that

might prejudice the jury. The district court agreed 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 parole officer, to submit to drug

testing upon request, and not to possess firearms or other deadly weapons. After

the redactions defense counsel objected only to the inclusion in the redacted

document of the text of the Colorado statute prohibiting possession of firearms by

convicted felons.

Much of the testimony of Parole Officer Walters related 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 violence. Expressing concern that

the testimony would be understood as saying that it was 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. Defense 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 the objections.

The jury convicted Mr. Herron of possessing the Bersa .380. At

sentencing, Mr. Herron requested a downward departure on various grounds,

including his acceptance of responsibility for his offense. The district court

denied the request. Also, it ruled that an enhancement was required by the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because 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’ imprisonment, 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 that it was a condition of his

parole that he not possess a firearm. Defense counsel did not challenge that
1Condition 4 stated in full:

Report: Parolee shall make written, and in person, reports as

directed by the Parole Officer; and shall permit visits to his place of

residence as required by the Parole Officer.

a. Parolee further shall submit urinalysis or other tests for

narcotics or chemical agents upon the request of the Parole

Officer, and is required to pay for all tests.

b. Parolee further agrees to allow the Parole Officer to search

his person, or his residence, or any premises under his control,

or any vehicle under his control.

Aplt. Br., Ex. 26.

2Condition 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 agreement because he could be

prejudiced by other terms of his parole, specifically 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 his parole officer, to allow

searches by his parole officer, and to submit to drug 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 statute barring possession of

firearms by convicted felons. The district court overruled the objection. 
-8-

Mr. Herron now challenges the inclusion of the text of the Colorado statute,

Condition 4, and Condition 5 as violations of Federal Rules of Evidence 403

(relevant evidence must be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice) and 404(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 challenge was presented below, we

address it separately.

a. The Colorado Statute

Mr. Herron argues that the text of § 18-12-108 included on the second page

of the parole agreement was irrelevant and potentially confusing. We need not

resolve whether this portion of the agreement was relevant to Mr. Herron’s

innocent-possession defense, because any error in its 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 specific language of the

statute. And the substance of the statute—that Colorado law forbids convicted

felons to possess firearms—was repeatedly presented to 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 possession of a firearm suffers

unfair prejudice from evidence that such possession also violates state law. 

Mr. Herron argues that reference to the state statute improperly showed that he

was guilty of “other misconduct.” Aplt. Br. at 7. But, of course, there was no

other misconduct—the same act simply violated two virtually identical statutes. 

b. Conditions 4 and 5

In his brief on appeal Mr. Herron challenged the failure to redact

Condition 5 from the parole agreement, and at oral argument he challenged the

failure to redact Condition 4. Because he raised neither 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 there is (1) error, (2) that is

plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal

quotation marks omitted). Ordinarily, an error “affects substantial rights” only if

it “affected the outcome of the district court proceedings.” 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 prejudicial had already

been presented to the jury from other sources, including his own attorney. In his

opening statement defense counsel referred to Mr. Herron’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 that he recognized Mr. Herron from

his former job at the parole office, where he collected urine samples, including

Mr. Herron’s, for testing. Defense counsel did not object to this testimony, and

questioned Mr. Thares further about urinalysis during cross-examination. Parole

Officer Walters testified about the parole search of Mr. Herron’s house. In these

circumstances, we cannot see how admission of the redacted 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 was 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 this case that gave

an immediacy to parole’s role in the investigation?

A: Yes, there was. There was a public safety factor of a parolee

with a violent history possibly in possession of weapons.
-11-

Q: And when you believed that Mr. Adamson may have been in

possession of a weapon, it is then that you took the 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 mistrial, arguing that Parole

Officer Walters had just told the jury that Mr. Herron 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 the record and taken entirely

out of the case any reference to Mr. Herron’s history, 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 motion for mistrial. See

United States v. Kravchuk, 335 F.3d 1147, 1154 (10th Cir. 2003). “A mistrial

may only be granted when a defendant’s right to a fair 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 previous eight pages of

testimony focused on Mr. Adamson, not Mr. Herron. Moreover, the district court

immediately instructed the jury to disregard any reference to “Mr. Herron’s

history.” R. Doc. V. at 298. “We presume that jurors 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 reject the presumption in the

circumstances presented here. The district court did 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 had possessed the Bersa

.380 innocently–that is, that his possession was only transitory and for no illicit

purpose. Defense counsel sought and obtained the following jury instruction:

Instruction 18.

It is a defense to the charge of unlawful possession of a

firearm that the defendant’s possession of the firearm constituted

innocent possession.

Possession of a firearm constitutes innocent possession where:

1. The firearm was obtained innocently and held with no

illicit purpose; and

2. Possession of the firearm was transitory, i.e., in light of

the circumstances presented there is a good basis to find

that the defendant took adequate measures to rid himself

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 possession, you

should find the defendant not guilty.
-13-

R. Vol. VI at 483-84.

Mr. Herron now contends that the district court should have sustained two

objections to statements regarding this defense by the prosecutor during closing

argument, and that as a result he was denied his right to a fair trial. While

arguing to the jury that Mr. Herron’s innocent-possession defense was

inapplicable to the facts of the case, the prosecutor said, “This defense was meant

for different circumstances. Let’s think of an example. If there’s a felon”—at

which point Mr. Herron objected, saying that the court 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 continued:

Let’s talk about an example. If there’s a felon walking down the

street, and he crosses a playground full of children, and he sees in the

playground a gun, he picks it up, and he immediately 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 we might consider

this defense. We’re not even close to that here.

Finally, on this issue, you must find that Mr. Herron—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 this statement improperly told

the jurors that they could disregard Instruction No. 18.

The prosecutor continued the argument by pointing out that Mr. Herron

knew from his parole agreement that he was not allowed 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 did 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 on 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 jury’s verdict” was

inappropriate. R. Vol. VI at 499. The district court overruled this objection as

well and the prosecutor proceeded:

What you’re saying, if you find this defense applicable, is that so

long as there’s some basis for concluding that a felon was helping a

friend, he can hold a gun even though there’s no imminent risk of

harm to him or that friend. This is not what Congress 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 law.

R. Vol. VI at 500. Mr. Herron did not object further 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 misconduct, “[w]e must first

examine whether the prosecutor's conduct was in fact improper, and if so, then

determine whether the error was harmless beyond a reasonable doubt.” United

States v. Pulido-Jacobo, 377 F.3d 1124, 1134 (10th Cir. 2004) (internal quotation

marks, brackets, and ellipses omitted). We determine 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 the role of the misconduct within

the case as a whole .” Id.

We have long held that “[p]rosecutors have considerable 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 to exculpatory arguments made

by defendants during closing arguments.”). Most of the prosecutor’s comments

were proper argument based on the court’s instruction. 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 comment by the prosecutor was

that if the jury adopted the innocent-possession defense, a convicted felon could

possess a gun “as long as there’s some basis for concluding that [the] felon was

helping a friend.” R. Vol. VI at 500. It is improper 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-possession defense set forth in the

instructions, the prosecutor was trying to emphasize the absurdity of recognizing
-16-

the defense in such circumstances. The language used 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 cumulative-error analysis

aggregates all errors found to be harmless and analyzes whether their cumulative

effect on the outcome of the trial is such that collectively 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 above analysis shows, there was

no cumulative error here. 

B. Application of the ACCA

1. Violent Felony

Mr. Herron next claims that the district court erred 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 under 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 a violent felony as 

any crime punishable by imprisonment for a term exceeding one year,

or any act of juvenile delinquency involving the use 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 use of physical force

against the person of another; or (ii) is burglary, arson, or extortion,

involves use of explosives, or otherwise involves conduct 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 to make a crime a violent felony;

all that is required is the threat of such force against another’s person. 

The Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), held

that to determine whether a crime qualifies as a violent felony under the ACCA, a

court must ordinarily use “a formal categorical approach, looking only to the

statutory definitions of the prior offenses, and not 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 Colorado menacing statute reads: 

A person commits the crime of menacing if, by any threat or physical

action, he or she knowingly places or attempts to place another

person in fear of imminent serious bodily injury. Menacing is a class

3 misdemeanor, but, if committed by the use of a deadly weapon it is

a class 5 felony.

Colo. Rev. Stat. Ann. § 18-3-206 (1999) (amended 2000). The Colorado Criminal

Code defines “serious bodily injury” as
-18-

bodily injury which, either at the time of the actual injury or at a later

time, involves a substantial risk of death, a substantial risk of serious

permanent disfigurement, a substantial risk of protracted 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 violent felonies. He

“knowingly place[d] or attempt[ed] to place another person 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 threatened 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 bottle, 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 hours, 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 someone comes within the ACCA

definition regardless of whether a foot or bottle is 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 the adjustment because he admitted

his “factual guilt” in pretrial statements to Parole 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 district court’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-responsibility

adjustment is to be granted “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense.” U.S. Sentencing Guidelines Manual § 3E1.1(a)

(2004). Application Note 2 states that the adjustment “is not intended to apply to

a defendant who puts the government to its burden of 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, that

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 admit 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 defendant thereafter knowingly

possessed a firearm, and (3) possession was in or affecting interstate commerce.” 

Griffin, 389 F.3d at 1104. Mr. Herron stipulated only to the first element. The

district court found at the sentencing hearing that he 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 store, or fired it. The prosecution

accordingly called witnesses to establish these facts, and defense counsel tested

their testimony on cross-examination. The district court also found that

Mr. Herron “[c]learly and indisputably” challenged the jurisdictional element of

both offenses. R. Supp. Vol. I at 10. The government called two witnesses to

establish that the guns had moved in interstate commerce. While the prosecution

was examining Mr. Atzmiller, the chief financial officer of the manufacturer of

the .44 magnum, the court called counsel to the bench, where the following

colloquy occurred:
-21-

THE COURT: You can go through this unless the defense

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 claimed that the trial was

held only to preserve issues unrelated to factual guilt so that those issues could be

appealed. Accordingly, the court determined that the downward adjustment was

not warranted. Based on this record, we would find an abuse of discretion if the

district court had granted the downward adjustment. The district court’s

determination was certainly not clearly erroneous.

D. Prior Convictions

Mr. Herron next claims that the district court violated 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 foreclosed 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). Booker held that

“[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict must be admitted by the defendant 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 Sentencing] 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 Booker therefore “excised 18 U.S.C. § 3553(b)(1), which made

the imposition of a Guidelines sentence mandatory in the vast majority of cases.” 

Id. Consequently, federal district courts “are still required to consider the

Guidelines in determining sentences, but they are not 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

Booker by sentencing him under a mandatory application of the Sentencing

Guidelines. When “the resulting [mandatory] sentence 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 term “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 review 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) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732

(internal quotation marks omitted). The government concedes 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 standard 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 allowing 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 court did comment at the

sentencing hearing that it was required to apply the 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 responsibility to protect the public

from an individual who simply refuses or cannot conform conduct to the law.” 

R. Supp. Vol. I at 50. Further, although the district court sentenced Mr. Herron at

the bottom of the guidelines range, it gave no indication 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 suggests that were this court to

remand, the district judge would not simply reimpose the same sentence, nor does

anything in the record suggest any unfairness in the sentencing.” Jones, 425 F.3d

at 1276. “Mandatory treatment of the Guidelines in this case did not seriously

affect the fairness, integrity, or public reputation of judicial proceedings.” Id. at

1277. Accordingly, we affirm Mr. Herron’s sentence.

III. CONCLUSION

We AFFIRM Mr. Herron’s conviction and sentence.