United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 26, 2005
Charles R. Fulbruge III
Clerk
No. 04-10188
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ROBERT WAYNE MONTGOMERY
Defendant - Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:03-CR-32-ALL-C
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Robert Wayne Montgomery.
United States v. Montgomery, No. 04-10188 (5th Cir. Dec. 16,
2004). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). See Montgomery v. United States, 125 S. Ct. 1948 (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this opinion should not be published and is not precedent except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. 04-10188
-2-
Montgomery argues that his sentence must be vacated and the
case remanded under Booker because the facts on which the
district court relied to enhance his sentence were not charged in
the indictment, admitted by him, or proven by the Government
beyond a reasonable doubt. Montgomery’s contention that review
is de novo because he preserved the Booker error lacks merit.
See United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000).
Montgomery fails to meet his burden of showing that the district
court’s sentence under guidelines it deemed mandatory affected
his substantial rights such that his sentence amounts to plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005)(No. 04-9517).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Montgomery’s conviction and
sentence.
AFFIRMED.