In U.S. v. Petho, No. 04-15412 (May 18, 2005), the Court (Barkett, Hull & Wilson) found no Booker error and affirmed a sentence for a defendant convicted of bank robbery.
The defendant had preserved a Booker objection to his sentence in the district court, but the Court found any Booker error harmless. The Court noted that the district court, in imposing a 37-month Guideline sentence, stated that it would have imposed the "same sentence" if the guidelines were non-binding. The Court also noted that there was no Sixth Amendment error because the defendant admitted the enhancing facts – passing a threatening note – at his plea colloquy.
