No Plain Booker Error Where Sentence Already Completed

U.S. v. Westover, -- F.3d --, 2006 WL 218179 (10th Cir. 1/30/06) - Constitutional error in pre-Booker sentence did not meet the plain error standard. Although the first two elements of plain error analysis were met, Mr. Westover failed to establish that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. By the time the COA got around to deciding, he had done his time and was on supervised release. The district court seemed satisfied with the sentence it imposed. Mr. Westover did not seriously contest the factual accuracy of the findings pertaining to the amount of loss and re: his two levels for obstruction of justice, he conceded that his testimony was incorrect.