United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 4, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10377
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG PRITCHETT; SEAN PASEK,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-120-4-Y
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Craig Pritchett appeals his conviction and sentence for
conspiracy to manufacture methamphetamine, and Sean Pasek appeals
his sentence imposed for the same offense. We affirm.
With regard to Pritchett’s conviction, we hold that the
district court’s response to the jury’s conspiracy query was not
plainly erroneous; the district court’s reply was responsive to the
jury’s inquiry, and the reply and the original charge allowed the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
jury to understand the issue before it.1 We also hold that the
district court did not clearly err in calculating the amount of
methamphetamine attributable to Pasek.2
Finally, both Pritchett and Pasek argue that their sentences
run afoul of the Sixth Amendment. While this case was on direct
appeal the Supreme Court decided United States v. Booker.3 As the
Sixth Amendment issue was raised in the present case for the first
time on appeal, we review only for plain error.4 Reversible plain
error exists only if there is (1) error; (2) that is plain; and (3)
that affects substantial rights.5 If all three conditions are met
we have discretion to correct the error; however, we “ordinarily
will not do so unless it affects the fairness, integrity, or public
reputation of judicial proceedings.”6
The first two prongs of the plain error test are easily
satisfied here.7 However, in light of our recent decision in
1
See United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998).
2
See United States v. Bellazerius, 24 F.3d 698, 703 (5th Cir. 1994),
superceded by statute on other grounds, as stated in United States v. Lightbourn,
115 F.3d 291, 293 (5th Cir. 1997).
3
--- U.S. ----, 125 S.Ct. 738 (2005).
4
United States v. Mares, --- F.3d ----, 2005 WL 503715, *7 (5th Cir.
2005).
5
Id. at *8 (citing United States v. Cotton, 535 U.S. 625, 631 (2002)).
6
United States v. Castillo, 386 F.3d 632, 636 (5th Cir. 2004); see also
Johnson v. United States, 520 U.S. 461, 467 (1997); United States v. Olano, 507
U.S. 725, 732 (1993).
7
See Mares, 2005 WL 503715, at *8 (citing Johnson, 520 U.S. at 468).
2
United States v. Mares, the third prong has not been met.8
Appellants have not carried their “burden of demonstrating that the
result would have likely been different had the judge been
sentencing under the Booker advisory regime rather than the
pre-Booker mandatory regime.”9
AFFIRMED.
8
See id. at *8-*9.
9
Id. at *9.
3