ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

We previously affirmed the district court’s upward departure in sentencing Sherri Ann Kaether for unlawful possession of stolen mail. While petition for certiorari with the Supreme Court was pending in this case, the Supreme Court decided United States v. Booker. 1 It subsequently granted Kaether’s petition for certiorari and vacated and remanded for reconsideration in light of Booker.

As the Government concedes, there was Booker error here because the district court enhanced Kaether’s sentence based on facts, other than a prior conviction, neither alleged in the indictment and proven to a jury nor admitted by Kaether. However, because Kaether concedes that she did not preserve this error, she must show that the error was plain. 2 And she concedes that she cannot meet this burden because she cannot show that the district court would have sentenced her less harshly had it known the Sentencing Guidelines were not mandatory. 3 We decline her invitation to revisit our precedent rejecting her arguments that plain error review should not apply 4 and that Booker’s remedial holding cannot be applied to her retroactively. 5

Kaether’s sentence is AFFIRMED.