United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 2, 2005
Charles R. Fulbruge III
Clerk
No. 03-30916
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE RIEMER CALHOUN, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50021-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
On August 26, 2004, this court affirmed the sentences of
Maurice Riemer Calhoun, Jr. United States v. Calhoun, 383 F.3d
281 (5th Cir. 2004). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). Calhoun v. United States, 125 S. Ct. 1068
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 03-30916
-2-
Calhoun contends that the district court violated his Sixth
Amendment rights under Booker by imposing Sentencing Guidelines
increases based on factors that were neither submitted to a jury
for proof beyond a reasonable doubt nor admitted by him. He
concedes that such argument is raised for the first time and is
reviewable for plain error only. See United States v. Mares, 402
F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed (Mar.
31, 2005) (No. 04-9517). The parties do not dispute that the
first two prongs of the plain-error test have been satisfied:
There is Sixth Amendment error in Calhoun’s case, and such error
is “plain” under Booker. See id. at 521.
To satisfy the third prong of the plain-error test, Calhoun
must show that his “substantial rights” were affected. See id.
“The pertinent question is whether [the appellant] demonstrated
that the sentencing judge-–sentencing under an advisory scheme
rather than a mandatory one-–would have reached a significantly
different result.” Id. This question requires us to assess
whether “there is [an] indication in the record from the
sentencing judge’s remarks or otherwise that gives us any clue as
to whether [ ]he would have reached a different conclusion” if
sentencing under an advisory scheme. Id. at 522. That the
district court sentenced Calhoun to 60 months in prison, within a
51-to-63-month guideline imprisonment range, and that the court
stated that it was “going to follow the rules,” are not
No. 03-30916
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indications that the court would have imposed a “significantly
different result.” No plain error is apparent.
Calhoun also contends that the application of a mandatory
Guidelines regime was a “structural” error that was “per se
prejudicial” and “infect[ed]” his trial in a “pervasive and
systemic manner.” Sentencing a defendant pursuant to a mandatory
guideline scheme, standing alone, constitutes “Fanfan” error, and
such an error is “plain.” See Booker, 125 S. Ct. at 750, 768-69
(addressing preserved challenge in companion case); United States
v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). For
the reasons discussed above in connection with Calhoun’s first
argument, however, Calhoun has not established that such error
affected his substantial rights. See Valenzuela-Quevedo, 407
F.3d at 733.
Calhoun’s supplemental brief contains an informal request
that this court grant en banc consideration to the issue whether
Mares’s plain-error formulation for Booker cases is correct. He
also has filed a motion for leave to file a second supplemental
brief addressing why he believes Mares was incorrectly decided.
Calhoun has not remotely complied with FED. R. APP. P. 35 and 5TH
CIR. R. 35, which govern the filing of petitions for en banc
consideration. The request for en banc consideration and the
motion for leave to file a second supplemental brief are DENIED.
AFFIRMED; REQUEST AND MOTION DENIED.