051058P.pdf   03/15/2006  USA  v.  Fontaine Sherman
   U.S. Court of Appeals Case No:  05-1058
                          and No:  05-1072
                          and No:  05-1071
   Eastern District of Arkansas   
   [PUBLISHED] [Colloton, Author, with Riley and Hansen, Circuit Judges]
   Criminal case - Criminal law and Sentencing. Under the advisory
   guidelines scheme announced in Booker, allegations concerning
   adjustments under the sentencing guidelines need not be included in an
   indictment or submitted to the jury, and inclusion of the materials here
   was harmless surplusage; jury instructions on conspiracy were not
   erroneous; witnesses's references to defendant's shooting a gun were
   brief and the district court properly instructed the jury to disregard the
   information; district court did not err in denying mistrial based on claim
   publicity about gangs prevented a fair trial; case remanded under Booker
   to permit the district court to resentence defendant Scroggins; evidence
   was sufficient to support defendant Sherman's conviction for conspiracy
   and possession with intent to distribute; no error in enhancing Sherman's
   statutory minimum sentence based on a prior drug felony conviction.