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
No. 03-20948 Clerk
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
CHRISTOPHER JONES,
Defendant - Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
District Court Cause No. 4:03-CR-19-ALL
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed Christopher Jones’s conviction and
sentence.1 Jones then sought a writ of certiorari, relying on
the Supreme Court’s decision in United States v. Booker, 125 S.
Ct. 738 (2005).2 The Court granted Jones’s petition, vacated his
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
1
See United States v. Jones, No. 03-20948, 2004 WL 2980372
(5th Cir. Dec. 23, 2004).
2
See Jones v. United States, 125 S. Ct. 1999 (2005).
1
sentence, and remanded for further consideration in light of
Booker. We requested and received supplemental letter briefs
addressing the impact of Booker. Having reconsidered our
decision pursuant to the Supreme Court's instructions, we
reinstate our judgment affirming the conviction and sentence.
Jones was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Jones waived his right to a jury trial and was tried before the
court on stipulated facts. The district court found Jones guilty
and sentenced him to 80 months of imprisonment and three years of
supervised release.3
In his supplemental brief, Jones advances two arguments.
First, Jones contends that his “constitutional rights were
violated when he was sentenced under a Guidelines range based on
enhancements that were not found by a jury beyond a reasonable
doubt and not admitted by him but were determined by the district
court (presumably) only on a preponderance of the evidence.”
Second, Jones complains that “there was error under Booker
because [he] was sentenced under the assumption of a mandatory
Guidelines system that was held unconstitutional in Booker.”
3
This sentence was calculated using a base offense level of
20, a four-point increase for the possession of weapons in
connection with a felony drug offense, and a three-point
reduction for acceptance of responsibility. The sentence also
reflects 12 criminal history points and a criminal history
category of V.
2
Jones concedes that review is for plain error because he
raised no Booker objection in the district court.4 “An appellate
court may not correct an error the defendant failed to raise in
the district court unless there is ‘(1) error, (2) that is plain,
and (3) that affects substantial rights.’”5 If all three
conditions are met, then we may exercise our discretion to notice
the error only if it also “‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’”6
“It is clear after Booker that application of the Guidelines
in their mandatory form constitutes error that is plain.”7
Consequently, the first two requirements of the plain error test
are met. The third prong of the test, however, is not satisfied
in this case. To demonstrate that his substantial rights were
affected, Jones must show that the district court's error
affected the outcome of the proceedings.8 To meet that burden,
Jones must show “with a probability sufficient to undermine
4
See United States v. Mares, 402 F.3d 511, 520 (5th
Cir.2005), petition for cert. filed (Mar. 31, 2005) (No.
04-9517). Jones raised an argument on direct appeal in this
court based on Blakely v. Washington, 542 U.S. 296 (2004).
5
Mares, 402 F.3d at 520 (quoting United States v. Cotton,
535 U.S. 625, 631 (2002)).
6
Id.
7
United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir. 2005).
8
United States v. Olano, 507 U.S. 725, 734-35 (1993).
3
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.”9 That is, Jones must
point to some “indication in the record from the sentencing
judge’s remarks or otherwise” that the sentencing judge “would
have reached a different conclusion” under an advisory sentencing
scheme.10
Jones concedes that nothing in the record indicates that the
district judge would have imposed a different sentence under an
advisory scheme, but argues for the first time on remand that due
process and ex post facto concerns require us to vacate and
remand to the district court for resentencing. Jones recognizes
that this argument is foreclosed by the court’s decision in
United States v. Scroggins,11 but makes this argument to preserve
it for Supreme Court review.
Jones also contends that plain error review should not apply
because error applying the mandatory Guidelines scheme was
9
United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005).
10
Mares, 402 F.3d at 522.
11
411 F.3d 572, 576 (5TH Cir. 2005)(rejecting the appellant’s
argument that applying Justice Breyer’s remedial decision in
Booker, demoting the previous mandatory sentencing scheme to an
advisory scheme, violated the appellant’s protection against ex
post facto laws created by judicial enlargement); see also United
States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005) (rejecting
the same argument and reviewing for plain error because the
argument was raised for the first time on appeal).
4
structural in nature and affected the entire framework of the
sentencing in his case. Jones maintains that the court should
presume prejudice and reverse his sentence. He recognizes,
however, that this characterization is contrary to the court’s
determination in Mares and raises the argument to preserve it for
Supreme Court review.12
Because nothing in the record indicates that the district
judge would have imposed a lesser sentence under an advisory
sentencing scheme, Jones has not shown that his rights were
substantially affected and has failed to demonstrate plain error.
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 the
defendant's conviction and sentence.
12
See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005) (rejecting the appellant’s argument that the district
court’s application of the Sentencing Guidelines as mandatory is
a structural error insusceptible to plain error review because
the argument is inconsistent with this court’s analysis in Mares
and United States v. Villegas, 404 F.3d 355, 364 (5th Cir.
2005)).
5