United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 24, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30676
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH HUNTER,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-281-ALL-I
______________________
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Keith Hunter challenges his sentence on grounds that it was
imposed in violation of his Sixth Amendment right to jury trial.
We affirm.
Hunter pleaded guilty to three counts of trafficking in
cocaine, heroin and marijuana. He was assessed a base offense
level of thirteen and a criminal history category of IV, resulting
in a Guideline range of 33 to 41 months. At sentencing, 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should not be published and is not precedent except under the limited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.
district court found that Hunter’s “criminal history category does
not adequately reflect the seriousness of his past criminal conduct
of the likelihood that he will commit other crimes.” The court
then reviewed Hunter’s numerous past drug-related convictions and
prior arrest and concluded that a sentence of 87 months’
imprisonment was appropriate.
Hunter appealed his sentence on grounds that there was no
valid basis for the district court’s upward departure, and that the
degree of the departure was excessive. We held that the district
court erred in relying on Hunter’s prior arrest record, but found
this error to be harmless in light of the court’s further reliance
on the similarity of Hunter’s prior convictions to the present
offense, his failure to satisfy parole requirements, and the lack
of a deterrent effect of prior lesser punishments.1 The Supreme
Court vacated and remanded2 for further consideration in light of
United States v. Booker.3 We requested supplemental letter briefs.
On remand, Hunter argues that his sentence is illegal under
Booker in three ways. First, he claims that the district court
calculated his base offense level using marijuana quantities that
were neither charged in the indictment nor admitted as part of his
guilty plea. Second, he contends that the district court erred by
1
United States v. Hunter, No. 03-30676, 2004 WL 1598773 (5th Cir. July 19,
2004) (unpublished).
2
Hunter v. United States, 125 S. Ct. 1056 (2005).
3
125 S. Ct. 738 (2005).
2
departing upward on the basis of judicial fact-findings regarding
the nature of his prior convictions. Third, he urges that the
district court erred by treating the Sentencing Guidelines as
mandatory.
Booker provides that when a judge increases a defendant’s
sentencing range under a mandatory Guidelines regime based on facts
not found by a jury or admitted by the defendant, the resulting
sentence violates the defendant’s Sixth Amendment right to a jury
trial.4 Because Hunter did not object to his sentence on Sixth
Amendment grounds before the district court, our review is for
plain error only.5 “We find plain error when: (1) there was an
error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.”6 “‘If all three
conditions are met an appellate court may then exercise its
discretion to notice a forfeited error but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.’”7
With respect to Hunter’s first argument, we find that the
district court committed plain error when it enhanced his
4
See United States v. Bringier, 405 F.3d 310, 316 (5th Cir. 2005).
5
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
6
United States v. Infante, 404 F.3d 376, 394-95 (5th Cir. 2005) (citing
United States v. Olano, 507 U.S. 725, 732-37 (1993)).
7
Mares, 402 F.3d at 520 (quoting United States v. Cotton, 535 U.S. 625,
631 (2002)).
3
Guidelines range based on facts not admitted by him or found by a
jury.8 However, Hunter has failed to show “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.”9
Here, the judge found that even with the enhancement, Hunter’s
Guidelines range failed to reflect the seriousness of his prior
criminal record and the likelihood that he would recidivate.
Further, the court explicitly found that a sentence of 87 months’
imprisonment was “appropriate.” There is nothing in the record to
indicate that the court would have arrived at a lesser sentence had
it started from a lower “point of departure.”
Hunter’s second point of error is likewise unavailing.
Although the court sentenced Hunter under a mandatory Guidelines
regime, it exercised its discretion in crafting a sentence that it
believed would be appropriate in light of the specific nature of
Hunter’s past record. There is nothing in the record to suggest
that the court would have given a lesser sentence under an advisory
Guidelines regime.10 Lastly, to the extent that Hunter’s third
point of error implies that sentencing under a mandatory Guidelines
8
See Infante, 404 F.3d at 394; Mares, 402 F.3d at 520.
9
Infante, 404 F.3d at 395.
10
Moreover, to the extent that Hunter seeks to revive his challenge to the
district court’s application of the Guidelines in assessing the upward departure,
we find the sentence to be reasonable for the reasons given by the district
court. See United States v. Smith, No. 03-10171, 2005 WL 1663784 (5th Cir. July
18, 2005) (reviewing departure decisions post-Booker for reasonableness).
4
regime constitutes structural error, or that Booker error should be
presumed prejudicial, these arguments have been foreclosed by our
precedent.11
Based on the foregoing, we REINSTATE our prior opinion
affirming the judgment of the district court.
11
See United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005).
5