United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 16, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-10254
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY LAMONT AUSTIN,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
USDC No. 4:03-CR-256-ALL-A
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On a previous appeal, we affirmed Gregory Lamont Austin’s sentence for being a felon in
possession of a firearm. United States v. Austin, 111 Fed.Appx. 783 (5th Cir. Nov. 11, 2004) (per
curiam) (unpublished). Austin sought))and the Supreme Court granted))a writ of certiorari. The
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Supreme Court vacated the judgment and remanded the case for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005).
Austin failed to raise a Booker claim before the district court. Thus, we review his sentence
for plain error. United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517). Under plain error, this court may only correct a defendant’s sentence
if there is an: (1) error; (2) that is plain; (3) that affects substantial rights; and (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Cotton, 535
U.S. 625, 631 (2002); see also FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights
may be considered even though it was not brought to the court’s attention.”).
To show reversible plain error under Booker, the petitioner must “demonstrate[] that the
sentencing judge))sentencing under an advisory scheme rather than a mandatory one))would have
reached a significantly different result.” Mares, 402 F.3d at 521. “[I]f 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 is helped, the defendant loses.” Id. Austin concedes that he
cannot show that he would have received a lower sentence had the Guidelines been advisory rather
than mandatory.
Austin instead contends that Booker violates the Ex Post Facto and Due Process Clauses. Even
if these were valid attacks on Booker, we must follow Supreme Court precedent. See Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of [the
Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the
Supreme Court] the prerogative of overruling its own decisions.”).
2
Accordingly, we conclude that nothing in the Supreme Court’s Booker decision requires us
to change our prior affirmance in this case. We therefore reinstate our judgment affirming the
defendant’s conviction and sentence.
3