United States Court of Appeals
For the First Circuit
No. 04-1325
UNITED STATES,
Appellee,
v.
EDWARD J. FOX,
Defendant, Appellant.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Leval,* Senior Circuit Judge.
Kathleen M. McCarthy on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paul D. Silsby,
United States Attorney, on brief for appellee.
November 16, 2005
*
Of the Second Circuit Court of Appeals, sitting by
designation.
STAHL, Senior Circuit Judge. Defendant Edward Fox was
convicted by a jury in the United States District Court for the
District of Maine of possessing an unregistered shotgun. When he
originally appeared before us, he challenged that conviction on
multiple grounds, alleging police misconduct in conducting the
search that revealed his possession of the weapon, complaining of
improper admission of evidence, and challenging his sentence under
the United States Sentencing Guidelines. In an earlier published
opinion, United States v. Fox, 393 F.3d 52 (1st Cir. 2004), we
rejected his challenges and affirmed his conviction. That opinion
states the facts of the case, which we will not repeat here.
Fox petitioned the Supreme Court for certiorari. His
petition was granted, the judgment below vacated, and the case
remanded to us for reconsideration in light of the Supreme Court’s
decision in United States v. Booker, 125 S.Ct. 738 (2005). See Fox
v. United States, 125 S.Ct. 2949 (2005). We invited supplemental
briefing on whether the case should be remanded to the district
court for resentencing in accordance with Booker.
In his supplemental brief, Fox seems to suggest that he
preserved a Booker claim because he raised a challenge to his
sentence under Blakely v. Washington, 542 U.S. 269 (2004), when he
originally appealed his sentence in this court. However, in order
to preserve a Booker claim, Fox had to make his Blakely argument
before the district court in the first instance. Our review of the
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sentencing transcript and related memoranda reveals no evidence of
any suggestion made to the district court that the Sentencing
Guidelines, either on their face or as applied to Fox’s case, were
unconstitutional. In the absence of any indication in the record
that Fox challenged the constitutionality of his sentence in the
district court, we treat his claim as forfeited. See United States
v. Burnette, 423 F.3d 22, 24 n.2 (1st Cir. 2005).
We review a forfeited Booker challenge for plain error.
Id. at 24. "To establish plain error, an appellant must point to
(1) an error (2) that is plain and that both (3) affects
substantial rights and (4) seriously affects the fairness,
integrity or public reputation of judicial proceedings." Id.
(citing United States v. Olano, 507 U.S. 725, 732 (1993)).
The first two prongs of the plain error test are
satisfied "whenever [a] defendant's Guidelines sentence was imposed
under a mandatory Guidelines system." United States v.
Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005). To satisfy the
third prong, a defendant must demonstrate a reasonable probability
that he would have received a lesser sentence under an advisory
guidelines regime. Id. at 75. Although we are not overly
demanding in assessing a defendant's attempt to make this showing,
see United States v. Heldeman, 402 F.3d 220, 224 (1st Cir. 2005),
we do require the defendant to point to "something concrete . . .
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that provides a plausible basis for such a finding," United States
v. Guzmán, 419 F.3d 27, 32 (1st Cir. 2005).
Fox points to nothing that establishes any probability
that the district judge would have imposed a lesser sentence under
an advisory guidelines regime. He cites only to language in the
sentencing transcript that demonstrates that the judge understood
the Guidelines to be mandatory. This, as we have just noted, is
sufficient to prove error, but not to prove the degree of harm
requisite under plain error review. We are left with no reason to
believe that Fox would have received a different sentence under an
advisory guidelines regime, and therefore conclude that the
original sentence should be reinstated. Accordingly, we again
direct the entry of judgment affirming both the conviction and the
sentence.
So ordered.
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