United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-40561
consolidated with
No. 04-40582
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIKEAL GLEN STINE,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CR-44-2
--------------------
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
In an opinion of January 12, 2005, this court affirmed the
conviction and sentence of Mikeal Glen Stine for aiding and
abetting bank robbery and conspiracy to commit bank robbery. We
withdrew that opinion for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005), which held that
the federal sentencing guidelines are now advisory rather than
mandatory.
*
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this opinion should not be published and is not precedent except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.
No. 04-40561
c/w No. 04-40582
-2-
Having now considered the supplemental briefs filed by the
parties, we reinstate the entirety of the January 12, 2005
opinion and add the following:
Stine contends that his sentence is invalid in light of
Booker because the sentencing judge applied the sentencing
guidelines as if they were mandatory. Because Stine did not
raise this issue in the district court, we review it only for
plain error. United States v. Valenzuela-Quevedo, ___F.3d___,
No. 03-41754, 2005 WL 941353, *3 (5th Cir. 2005). To prevail
under a plain error analysis, Stine must show, among other
things, that the error prejudiced him by adversely affecting his
substantial rights. Id. at *3-*4.
Stine fails to identify anything in the record to suggest
that his sentence would have been any less had the court applied
the sentencing guidelines as advisory rather than mandatory. See
id. at *4. He thus fails to establish prejudice to his
substantial rights. See id.
The judgment of the district court is AFFIRMED.