United States Court of Appeals
Fifth Circuit
F I L E D
In the June 3, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 03-51163
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL EDWARD TUBBS,
ALSO KNOWN AS MICHAEL TUBBS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m W:03-CR-69-1
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, DEMOSS, and STEWART, (quoting United States v. Cotton, 535 U.S.
Circuit Judges. 625, 631 (2002)).
PER CURIAM:* The government seems to acknowledge that
there is plain error, so the first two prongs are
This court affirmed the sentence of Michael satisfied. To show that his substantial rights
Tubbs. United States v. Tubbs, 96 Fed. Appx. are affected, Tubbs must “point[] to . . . evi-
257 (5t h Cir. 2004) (per curiam). The Su- dence in the record suggesting that the district
preme Court vacated and remanded for further court would have imposed a lesser sentence
consideration in light of United States v. Book- under an advisory guidelines system.” United
er, 125 S. Ct. 738 (2005). Tubbs v. United States v. Taylor, No. 03-10167, 2005 U.S.
States, 125 S. Ct. 1054 (2005). We requested App. LEXIS 8701, at *4 (5th Cir. May 17,
and received supplemental letter briefs ad- 2005) (per curiam) (citations omitted).
dressing the impact of Booker.
In his supplemental brief, Tubbs “admits
Tubbs claims there is error under Booker that there is nothing on this record that indi-
because the district court, rather than a jury, cates that the sentencing judge . . . was dissat-
made a finding regarding the quantity of drugs isfied about the application of the Guidelines in
attributable to him. Although Tubbs did object this particular case.” Tubbs contends, how-
to the court’s inclusion of the so-called ever, that “there is evidence of his dissatisfac-
“bones” in the drug quantity, he did not raise tion with the entire scheme overall,” as al-
a Sixth Amendment objection or complain that legedly shown by the fact that the judge was
the quantity must be decided by a jury if not “one of the first District Judges in the Nation
admitted to by the defendant. to declare the sentencing Guidelines unconsti-
tutional in the wake of Blakely.” This is an
The government correctly contends the inadequate showing “that the sentencing
plain error standard of review should apply be- judgeSSsentencing under an advisory scheme
cause Tubbs did not preserve a Sixth Amend- rather than a mandatory oneSSwould have
ment error. See United States v. Mares, 402 reached a significantly different result.”
F.3d 511, 520 (5th Cir. 2005), petition for Mares, 402 F.3d at 521.
cert. filed (Mar. 31, 2005) (No. 04-9517).
“An appellate court may not correct an error The judgment of sentence is AFFIRMED.
the defendant failed to raise in the district
court unless there is ‘(1) error, (2) that is plain,
and (3) that affects substantial rights.’” Id.
*
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