United States v. Muhammad

United States Court of Appeals Fifth Circuit F I L E D In the May 18, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 03-10137 Summary Calendar _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS BOOKER T. MUHAMMAD, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Northern District of Texas m 4:02-CR-83-1-Y ______________________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before SMITH and WIENER, or obvious error in sentencing Muhammad Circuit Judges.* based on facts not found by a jury or admitted by the defendant, and in doing so under a PER CURIAM:** mandatory guidelines system.” The govern- ment correctly observes, however, that even This court afirmed defendant Booker without the challenged drug quantity, the Muhammad’s conviction and sentence. United district court, on resentencing, “would be pre- States v. Muhammad, 91 Fed. Appx. 972 (5th sented with []an advisory guideline range Cir. 2004) (per curiam). The Supreme Court containing the same sentence it already im- vacated and remanded for further consider- posed, and could thus impose that same sen- ation in light of United States v. Booker, 125 tence.” It follows that Muhammad cannot S. Ct. 738 (2005). Muhammad v. United show that he would receive a lesser sentence States, 125 S. Ct. 1006 (2005). on remand. Muhammad concedes that no Sixth Amend- Muhammad urges that, nonetheless, the ment objection was raised in the district court, error is structural. As this court has held, so we should review for plain error. See however, “we reject [the] argument toat Book- United States v. Mares, 402 F.3d 511, 520 er error is structural and insusceptible to harm- (5th Cir. 2005), petition for cert. filed (Mar. less error analysis, and that Booker error 31, 2005) (No. 04-9517). “An appellate court should be presumed prejudicial, as both claims may not correct an error the defendant failed are in conflict with Mares.” United States v. to raise in the district court unless there is ‘(1) Malveaux, 2005 U.S. App. LEXIS 5960, at *4 error, (2) that is plain, and (3) that affects n.9 (5th Cir. Apr. 11, 2005) (per curiam) substantial rights.’” Id. (quoting United States (unpublished). Muhammad’s substantial rights v. Cotton, 535 U.S. 625, 631 (2002)). have not been affected. In its supplemental letter brief addressing The judgments of conviction and sentence Booker, the government “concedes that in light are AFFIRMED. of Booker, the district court committed a clear * Judge Duhé was a member of this panel when the opinion issued on April 5, 2004. Although he remains a Senior Circuit Judge on this court, he is currently not hearing cases. Accordingly, this matter is decided by a quorum. See 28 U.S.C. § 46(d). ** Pursuant to 5TH CIR. R. 47.5, the court has de- termined 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. 2