United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 27, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 03-41609
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JOHN CHAPPELL,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
USDC No. 4:03-CR-41-ALL
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 William John Chappell’s conviction and sentence for being
a felon in possession of a firearm. United States v. Chappell, No. 03-41609, 2004 WL 2617982 (5th
Cir. Nov. 18, 2004). He 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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).
Chappell 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. Chappell concedes that he
cannot show that he would have received a lower sentence had the Guidelines been advisory rather
than mandatory.
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 Chappell’s
conviction and sentence.