United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 13, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40163
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD WAYNE ABNEY,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1250-1
______________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
Ronald Wayne Abney challenges his sentence for transportation
of an illegal alien. Although he plead guilty and admitted the
facts underlying his sentence enhancement, he claims that his
sentence was imposed in violation of United States v. Booker.1 We
affirm.
*
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this opinion should not be published and is not precedent except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.
1
--- U.S. ----, 125 S. Ct. 738 (2005).
I
Ronald Wayne Abney plead guilty to one count of transportation
of an illegal alien in violation of 8 U.S.C. § 1324. At his re-
arraignment, Abney conceded that he had driven a tractor-trailer
through Laredo, Texas, in August with seven illegal aliens in the
back of the trailer. Based on this admission, the district court
enhanced Abney’s offense level by three on grounds that his conduct
“intentionally or recklessly creat[ed] a substantial risk of death
or serious bodily injury to another person.”2 The court then
sentenced him to eighteen months’ imprisonment to be followed by
three years’ supervised release.
We affirmed in an unpublished opinion. The Supreme Court
denied Abney’s petition for writ of certiorari, but after Blakely
v. Washington3 granted a timely motion for rehearing vacating our
judgment and remanding for further consideration in light of
Booker.4 We ordered supplemental briefing.
II
The Government argues on remand that this appeal is moot as
Abney was released from custody on December 12, 2003. Abney urges
that an actual controversy still exists because he is subject to
supervised release until December 12, 2006. Article III, § 2 of
2
U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(b)(5) (2004).
3
--- U.S. ----, 124 S. Ct. 2531 (2004).
4
See Newsome v. United States, --- U.S. ----, 125 S. Ct. 1112 (2005)
(mem.).
2
the Constitution requires that a “‘case-or-controversy . . .
subsist[] through all stages of federal judicial proceedings, trial
and appellate.’”5 We find that this requirement is met because
Abney is still subject to supervised release, a part of his total
sentence.6
Turning to the merits, Abney concedes that he failed to raise
a Blakely or Booker-type objection in the district court. Thus,
our review is for plain error only. “We find plain error when: (1)
there was an error; (2) the error was clear and obvious; and (3)
the error affected the defendant's substantial rights.”7 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.”8
Assuming that the first two prongs of the plain error test are
5
United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999) (quoting
Spender v. Kemna,523 U.S. 1, 7 (1998) (citation and internal quotation marks
omitted)).
6
See 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of
imprisonment for a felony or a misdemeanor, may include as a part of the sentence
a requirement that the defendant be placed on a term of supervised release after
imprisonment. . . .”); United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir.
2001)(“[S]upervised release, while a form of post-imprisonment supervision, is
still considered to be a component of the defendant’s total sentence.”); United
States v. Benbrook, 119 F.3d 338, 341 n.10 (5th Cir. 1997) (“A period of
supervised release is part of the defendant’s sentence.”).
7
United States v. Infante, --- F.3d ----, 2005 WL 639619, at *13 (5th Cir.
March 21, 2005) (citing United States v. Olano, 507 U.S. 725, 732-37 (1993)).
8
United States v. Castillo, 386 F.3d 632, 636 (5th Cir. 2004); see Olano,
507 U.S. at 732.
3
satisfied here,9 Abney has failed to demonstrate that his
substantial rights were affected. In United States v. Mares, we
found that in order to satisfy the third prong of the plain error
test, the proponent of the error must demonstrate that his sentence
“would have likely been different had the judge been sentencing
under the Booker advisory regime rather then the pre-Booker
mandatory regime.”10 Abney points to the district court’s decision
to sentence him to eighteen months’ imprisonment, at the bottom end
of his guidelines range. The Government replies that the district
court recognized its ability to depart below the guideline range,
as Abney requested, but declined to do so. Absent additional
evidence, we cannot say that the trial court would have imposed a
different sentence had the Guidelines been advisory.
AFFIRMED.
9
See United States v. Mares, --- F.3d ----, 2005 WL 503715, at *8 (5th
Cir. March 4, 2005). The Government argues that the trial court did not commit
Booker error because Abney admitted all of the facts necessary to apply the
endangerment enhancement. See Booker, 125 S. Ct. at 756 (“Any fact (other than
a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.”); United States v. Holmes, --- F.3d ----, 2005 WL 768942, at *17 (April
6, 2005) (finding no Booker error for purposes of sentence enhancement for
committing an offense involving an elected official when the defendant admits at
trial that person involved in offense was an elected official). This argument
raises the question of whether Abney admitted to his mens rea when he admitted
that he transported aliens in a manner that may be considered dangerous. See
Apprendi v. New Jersey, 530 U.S. 466, 493 (2000) (“The defendant's intent in
committing a crime is perhaps as close as one might hope to come to a core
criminal offense ‘element.’”). Because Abney cannot prevail regardless of our
finding on this point, we decline to address this question directly. See United
States v. Solis, 299 F.3d 420, 451 (5th Cir. 2002) (assuming plain error and
disposing of claim on grounds that any such error was harmless).
10
Id. at *9.
4
5