United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 10, 2005
Charles R. Fulbruge III
Clerk
No. 03-11333
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTHONY LEE AARON,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(USDC No. 1:03-CR-29-1)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On February 28, 2005, the Supreme Court granted Aaron’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opinion should not be published and is not precedent except under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.
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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)). Aaron’s appeal satisfies
those conditions.
In his original appeal to this court, Aaron claimed only one
ground of error:
Whether the district court erred by failing to
apply Application Note 4, U.S.S.G. § 2B5.1,
that is, the exception to the base offense
level 15 for manufacturing counterfeit
obligations when the items are “so obviously
counterfeit that they are not likely to be
passed.”
Nothing in Booker addresses this claim of error, and Aaron 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.
FED.R.CRIM.P. 52(b); United States v. Mares, 402 F.3d 511 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Because the district court did not enhance Aaron’s sentence on the
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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 changes the Guidelines from
mandatory to advisory, there is error in this case 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 Aaron’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. Mares, 402 F.3d at 521-22. In Mares we said that “the
pertinent question is whether [the defendant] demonstrated that the
sentencing judgeSSsentencing under an advisory scheme rather than
a mandatory oneSSwould have reached a significantly different
result.” Id. at 521. 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.”
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Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th
Cir. 2005)).
In fact, the record affirmatively supports a contrary
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
Aaron’s objection to the PSR on the grounds that it did not
consider Application Note 4 of the commentary to Guideline §
2B5.1(a) and (b); and the court therefore implicitly ruled that the
counterfeit items passed by Aaron were not “so obviously
counterfeit that they are not likely to be passed.” The district
court’s remarks at sentencing demonstrate that the court also
considered the objectives of sentencing identified in subsections
(A)-(D) of 18 U.S.C. § 3553(a)(2). Accordingly, we determine that
Aaron has failed to satisfy the third prong of our plain error
analysis, i.e., that the sentence imposed by the district court
violated his 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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