United States v. Smith

United States Court of Appeals Fifth Circuit F I L E D In the May 31, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 03-51205 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS CHARLES PHILLIP SMITH, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Western District of Texas m 4:03-CR-165-ALL-H ______________________________ ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before DAVIS, SMITH, and DENNIS, 31, 2005) (No. 04-9517). Circuit Judges. “An appellate court may not correct an er- PER CURIAM:* ror the defendant failed to raise in the district court unless there is ‘(1) error, (2) that is plain, This court affirmed Charles Smith’s convic- and (3) that affects substantial rights.’” Id. tion and sentence. United States v. Smith, 110 (quoting United States v. Cotton, 535 U.S. Fed. Appx. 380 (5th Cir. 2004) (per curiam). 625, 631 (2002)). The government acknowl- The Supreme Court vacated and remanded for edges that there is plain error, so the first two further consideration in light of United States prongs are satisfied. v. Booker, 125 S. Ct. 738 (2005). Smith v. United States, 125 S. Ct. 1091 (2005). We re- With regard to the third prong, under Mar- quested and received supplemental letter briefs es, “the defendant rather than the government addressing the impact of Booker. bears the burden of persuasion with respect to prejudice.” Mares, 402 F.3d at 521 (citing Smith claims there is error under Booker United States v. Olano, 507 U.S. 725, 734 because his sentencing guideline range was in- (1993)). To show that his substantial rights creased by attributing to him the sale of 340.2 are affected, Smith must “point[] to . . . evi- grams of cocaine; he contends he was only dence in the record suggesting that the district bragging of such a sale and that he never ac- court would have imposed a lesser sentence tually sold such a quantity. He contends this is under an advisory guidelines system.” United Booker error because the fact of the sale was States v. Taylor, No. 03-10167, 2005 U.S. found by the district court rather than being App. LEXIS 8701, at *4 (5th Cir. May 17, admitted to by Smith or found by a jury. 2005) (per curiam) (citations omitted). In oth- er words, “the pertinent question is whether Although Smith did object to the court’s [the defendant] demonstrated that the sentenc- inclusion of the 340.2 grams, he did not raise ing judgeSSsentencing under an advisory a Sixth Amendment objection or complain that scheme rather than a mandatory oneSSwould the quantity must be decided by a jury if not have reached a significantly different result.” admitted to by the defendant. Smith and the Mares, 402 F.3d at 521. government correctly agree the plain error standard of review applies because Smith did Smith has presented nothing to satisfy that not preserve a Sixth Amendment error. See burden. Accordingly, the judgments of con- United States v. Mares, 402 F.3d 511, 520 viction and sentence are AFFIRMED. (5th Cir. 2005), petition for cert. filed (Mar. * 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 cir- cumstances set forth in 5TH CIR. R. 47.5.4. 2