United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 03-11291
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HILL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-159-G-2
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
David Hill was tried before a jury and convicted of
conspiracy to manufacture and possess with the intent to
distribute in excess of 500 grams or more of a mixture containing
a detectable amount of methamphetamine, in violation of 21 U.S.C.
§ 846. He argues that the district court erred under United
States v. Booker, 125 S. Ct. 738 (2005), when it sentenced him
based on factual determinations that were not included in the
jury verdict or admitted by Hill.
*
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this opinion should not be published and is not precedent except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. 03-11291
-2-
Hill did not raise this issue in the district court;
therefore, this court’s review is for plain error. United States
v. Mares, 402 F.3d 511, 513, 520-22 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517). In Hill’s case, as in
Mares, there was clear or obvious Booker error because the
district court imposed a sentence based on judge found facts that
were neither admitted by Hill nor found by a jury in a mandatory
Guidelines system. See id. at 520-21.
Hill asserts that he would have received a lesser sentence
without the enhancements. Hill’s assertion that his sentence
would have been lower absent the extra verdict enhancements fails
to establish that the Booker error affected his substantial
rights. See United States v. Bringier, 405 F.3d 310, 318 (5th
Cir. 2005), petition for cert. filed (July 26, 2005) (No. 05-
5535). Furthermore, Hill has not shown, with a probability
sufficient to undermine confidence in the outcome, that if the
judge had sentenced him under an advisory sentencing regime,
rather than a mandatory one, he would have received a lesser
sentence. He therefore has failed to establish plain error. See
United States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005).
To the extent that Hill is arguing that the Booker error
should be presumed prejudicial, this argument is at odds with
Mares, 402 F.3d at 520-22, and is therefore rejected. See United
States v. Malveaux, 411 F.3d 558, 561 and n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (No. 05-5297).
The judgment of the district court is AFFIRMED.