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Click here for the full text of this decision FACTS:Defendant Demarcus LeCarl Jones appeals his sentence after entering a guilty plea for being a felon in possession of a firearm. Jones’ presentence report (PSR) calculated his guideline sentence range at 46 to 57 months. Jones filed no objections to the PSR. At sentencing, the district court departed upward and sentenced Jones to the statutory maximum sentence of 120 months. As justification, the court noted that based on the police report Jones was driving a car and in possession and under the influence of drugs at the time of the current offense. The court found that this behavior seriously endangered the public and seriously aggravated the offense. The court also alluded to charges on two state court offenses that occurred after the instant offense in which Jones apparently possessed guns and “used them in personal violence.” Based on Jones’ persistent use of firearms or violence against others, and the public endangerment he created while committing the instant offense, the district court departed upward seven levels to a guideline range of 97 to 121 months of imprisonment. Jones objected to the upward departure on the basis that it was based on facts not proven beyond a reasonable doubt to a jury or admitted by Jones. The district court overruled the objections and sentenced Jones to 120 months in prison, the statutory maximum for his offense, and three years of supervised release. Jones appeals. HOLDING:Affirmed. Even assuming that Jones can establish Booker error under these circumstances, the court finds any error to be harmless. There is no argument that the mandatory nature of the guidelines affected the district court’s sentencing decision in any way. The district court properly calculated Jones’ guidelines sentence, without objection from Jones, and then exercised its discretion to depart from the sentence that would result from a mandatory application of the guidelines. Jones’ only argument under Booker is that the district court’s use of judge found facts to support the upward departure violates Booker and Blakely. He makes no argument of Booker error in relation to the calculation of the base mandatory guideline sentence. The court distinguishes this case from a similar case decided by the U.S. 7th Circuit Court of Appeals in United States v. Burke, 425 F.3d 400 (7th Cir. 2005), Under the specific facts of this case, in which the defendant’s Booker challenge is addressed only to a discretionary aspect of the sentencing guidelines, the court finds that the government has met its burden of establishing beyond a reasonable doubt that any Booker error did not contribute to the sentence Jones received. Additionally, the fact that the district court departed up to the statutory maximum sentence further supports the conclusion that the district court would have imposed the same sentence under an advisory sentencing scheme. OPINION:Davis, J.; Reavley, Davis and Wiener, JJ.

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