F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 24, 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 04-1476
          v.                                      (D.C. No. 03-CR-555-D)
 AARON QUINN JACOBSON,                                  (D. Colorado)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      On September 12, 1991, in North Carolina state court, Defendant Aaron

Quinn Jacobson pleaded guilty to second-degree sexual offense, a felony

punishable by up to 40 years’ imprisonment, and taking indecent liberties with a

minor, a felony punishable by up to 10 years’ imprisonment. On November 9,

2003, while Defendant was living with his parents, his father entered Defendant’s


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.   This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
room to borrow a book. Defendant became very angry and threatened his father

with a shotgun. On November 18 a federal grand jury indicted Defendant on a

charge of being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1).

      Defendant moved the district court to dismiss the indictment on the ground

that his right to possess the shotgun had been restored under North Carolina law.

The district court relied on Caron v. United States, 

, 309-10 (1998),

to deny this motion.

      Defendant pleaded guilty to the indictment. In his plea agreement he

admitted “that there [was] a preponderance of the evidence that” he possessed the

firearm in connection with a felony, namely, menacing, which is a felony under

Colorado law. R. Vol. I, Doc. 46 at 6; see Aplt. Br. at 3. But at sentencing on

October 27, 2004, Defendant objected under Blakely v. Washington, 

(2004), to the use of that admission to trigger a four-level enhancement

under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) (2004). The district

court denied this objection, calculated a base offense level of 14, applied the

contested four-level enhancement, and subtracted three levels for acceptance of

responsibility. This resulted in a sentencing range of 24 to 30 months’

imprisonment; the court sentenced Defendant to the maximum 30-month term.




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       Defendant appeals. First, he raises again his argument based on North

Carolina’s restoration of his right to possess shotguns. But he does so solely to

preserve it for Supreme Court review. As Defendant puts it: “While this Court

cannot give [him] the relief he seeks, the Supreme Court can.” Aplt. Br. at 8. We

agree with Defendant that we are bound by Caron, and that the district court

properly denied his motion in reliance on that decision.

       Next, he raises an issue under United States v. Booker, 

(2005). Before that decision federal courts treated the Sentencing Guidelines as

binding. Booker teaches that this view was mistaken; the guidelines are in fact

advisory only. Defendant’s sole Booker argument on appeal is that he “has yet to

be sentenced under a regime in which the guidelines are treated as advisory.”

Aplt. Br. at 4. 1

       Defendant correctly claims error, but he is not entitled to relief if the error

was harmless. Because the alleged error is nonconstitutional, it is harmless if it

“‘did not affect the district court’s selection of the sentence imposed.’”

United States v. Labastida-Segura, 

, 1143 (10th Cir. 2005) (quoting

Williams v. United States, 

, 203 (1992)). We are convinced that the



       1
        Because Defendant did not raise a Sixth Amendment Booker claim on
appeal, we deem that issue waived. See United States v. Sanchez-Cruz, 

, 1201 (10th Cir. 2004) (defendant must properly raise Sixth Amendment
issue in brief on appeal.)

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error in this case was harmless. Had the district court thought a more lenient

sentence appropriate, it would have exercised its pre-Booker discretion to impose

a lesser sentence within the guidelines range; certainly it would not have imposed

the most severe sentence it could. See United States v. Riccardi, 

,

876 (10th Cir. 2005) (error harmless when district court imposed top-of-the-

guidelines-range sentence). We acknowledge the clever argument Defendant

offers to the contrary—namely, that the district court might have been concerned

with the relative punishment imposed, and so might have imposed a less severe

punishment had it been free to select the range of punishments, rather than bound

to use the guidelines range—but we are not persuaded that it realistically

describes the sentencing process.

      We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM the judgment

and sentence below.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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