United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit April 20, 2005
Charles R. Fulbruge III
Clerk
No. 03-41244
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
NOELIA CAMPOS MADRIGAL,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-03-CR-109-1)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
On January 24, 2005, the Supreme Court granted Madrigal’s
petition for a writ of certiorari, vacated the prior judgment of
this court, and remanded this appeal to this court for
“consideration in light of United States v. Booker, 543 U.S.___ [,
125 S. Ct. 738] (2005).” In its remand order the Supreme Court did
*
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opinion should not be published and is not precedent except under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.
not specify which of the two majority opinions set forth in Booker
was the basis for its remand decision. The Supreme Court did make
clear in its Booker decision that both opinions would be applicable
to all cases pending on direct review or not yet final as of
January 12, 2005. See Booker, 125 S. Ct. at 769 (citing Griffith
v. Kentucky, 479 U.S. 314, 328 (1987)). Madrigal’s appeal
satisfies those conditions.
In her original appeal to this court, Madrigal claimed two
grounds of error: first, erroneous application of the safety valve
provision of the Sentencing Guidelines; and second, her assertion
that 21 U.S.C. § 841 was unconstitutional on the basis of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Nothing in Booker addresses
either of these claims of error, and Madrigal failed to object in
the district court on either of the grounds addressed in Booker,
i.e., (i) a Sixth Amendment violation resulting from an enhancement
of a sentence based on facts (other than a prior conviction) found
by the sentencing judge, which were not admitted by the defendant
or found by the jury; or (ii) that the Sentencing Guidelines were
unconstitutional because they were mandatory and not advisory.
Consequently, we review for plain error. Because the district
court did not enhance Madrigal’s sentence on the basis of any facts
found solely by the court, we conclude that Booker’s Sixth
Amendment holding is not applicable to this case. However, under
the Booker holding that Congress originally intended the Guidelines
to be advisory and not mandatory, there is error in this case
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because the district court viewed and acted under the Sentencing
Guidelines as mandatory and not discretionary. Applying our plain
error analysis, we conclude: (1) there was error because the
district court operated under a mandatory scheme and not an
advisory scheme; and (2) such error is now plain under Johnson v.
United States, 520 U.S. 461, 468 (1997)(holding it is enough that
error be plain at the time of appellate review). However, under
the third prong of our plain error methodology, i.e., whether the
error affects substantial rights, it is Madrigal’s burden to show
that, but for the error of acting on the premise that the
Guidelines are mandatory and not advisory, the district court would
have made a different decision. In United States v. Mares, 2005
U.S. App. LEXIS 3653, at *27-*28 (5th Cir. Mar. 4, 2005), we said
that “the pertinent question is whether [the defendant] dem-
onstrated that the sentencing judgeSSsentencing under an advisory
scheme rather than a mandatory oneSSwould have reached a
significantly different result.” That is, the plain error standard
places the
burden of proof [on the defendant] and re-
quires “the defendant to show that the error
actually did make a difference: if it is
equally plausible that the error worked in
favor of the defense, the defendant loses; if
the effect of the error is uncertain so that
we do not know which, if either, side it
helped the defendant loses.”
Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th
3
Cir. 2005)).
In fact, the record affirmatively supports the proposition
that the district court, if given the opportunity to treat the
Guidelines as discretionary only, would likely have imposed the
same sentence because the court expressly denied Madrigal’s request
for a sentence at the bottom of the Guideline range. The district
court’s remarks at sentencing demonstrate that the court also
explicitly considered the objectives of sentencing identified in
subsections (A)-(D) of 18 U.S.C. § 3553(a)(2). Accordingly, we
determine that Madrigal has failed to satisfy the third prong of
our plain error analysis, i.e., that the sentence imposed by the
district court violated her substantial rights.
We conclude, therefore, that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in this
case. We therefore affirm the conviction and sentence as set by the
trial court. AFFIRMED.
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