United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-11531
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN ARLEY POTTS, II,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-420-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alvin Arley Potts, II, appeals his sentence following his
guilty-plea conviction for conspiracy to commit mail theft and
identity theft. He was sentenced to 41 months in prison and a
two-year supervised release term. Potts argues that his
mandatory term of supervised release under the sentencing
guidelines is unconstitutional in light of United States v.
Booker, 125 S. Ct. 738 (2005).
*
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this opinion should not be published and is not precedent except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. 04-11531
-2-
Because Potts did not raise this issue in the district
court, this court reviews the argument for plain error. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517); United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005).
Thus, Potts must show: (1) an error; (2) that is clear or plain;
(3) that affects his substantial rights; and (4) that seriously
affects the fairness, integrity, or public reputation of his
judicial proceedings. United States v. Olano, 507 U.S. 725, 732-
35 (1993).
Potts makes no showing that the district court would likely
have sentenced him differently under the Booker advisory scheme.
Similarly, there is no indication from the court’s remarks at
sentencing that the court would have reached a different
conclusion. Thus, Potts has not demonstrated that his
substantial rights were affected, and he has thus failed to carry
his burden under plain-error review. See Mares, 402 F.3d at 521-
22; Valenzuela-Quevedo, 407 F.3 at 733-34. Accordingly, Potts’s
sentence is AFFIRMED.