United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2005
Charles R. Fulbruge III
Clerk
No. 04-20326
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN RAY HALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-7-1
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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:*
We previously affirmed the sentence imposed following Kevin
Ray Hall’s resentencing. United States v. Hall, No. 04-20326
(5th Cir. Jan. 14, 2005) (unpublished). The Supreme Court has
vacated and remanded for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (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this opinion should not be published and is not precedent except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. 04-20326
-2-
Hall argues that his Sixth Amendment rights were violated
because his guidelines range and sentence were increased based on
the district court’s finding that the firearm he possessed was
stolen. He also contends that the district court erred by
sentencing him under a mandatory guidelines scheme. Hall asserts
that the error in applying the guidelines as mandatory is
structural and that prejudice should be presumed.
Hall concedes that his structural error and presumed
prejudice arguments are foreclosed and raises them simply to
preserve further review. See United States v. Malveaux, 411 F.3d
558, 561 n.9 (5th Cir. 2005), petition for cert. filed (July 11,
2005) (No. 05-5297). Because Hall did not raise Sixth Amendment
error or the mandatory application of the guidelines as issues
before the district court, plain error review applies. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517). This
court may correct forfeited errors only when the appellant shows
the following factors: (1) there is an error, (2) that is clear
or obvious, and (3) that affects his substantial rights. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc) (citing United States v. Olano, 507 U.S. 725, 731-37
(1993)). If these factors are established, the decision to
correct the forfeited error is within the sound discretion of the
court, and the court will not exercise that discretion unless the
No. 04-20326
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error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 735-36.
To establish plain error under Mares, Hall must demonstrate
that the district court would have reached a significantly
different result had he been sentenced under advisory guidelines.
Mares, 402 F.3d at 521. As Hall concedes, he cannot make this
showing.
In our prior decision, we held that Hall’s challenge to the
sufficiency of the evidence of interstate commerce was barred by
the law of the case doctrine. Because Booker does not change
this result, that portion of our prior decision is reinstated.
The judgment of the district court is AFFIRMED.