United States v. Cockerham

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. 04-30642 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SHAWN M. COCKERHAM, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:02-CR-60041-RFD -------------------- Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges. PER CURIAM:* Shawn M. Cockerham appeals his guilty-plea conviction and sentence for being a felon in possession of ammunition and firearms. Cockerham contends that his sentence is invalid in light of United States v. Booker, 125 S. Ct. 738 (2005), because the sentencing judge applied the sentencing guidelines as if they were mandatory. We review for plain error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition for cert. filed (July 25, 2005) (No. 05-5556); United States v. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-30642 -2- Malveaux, 411 F.3d 558, 560 (5th Cir. 2005), petition for cert. filed (July 11, 2005) (No. 05-5297). To prevail under a plain error analysis, Cockerham must show: “(1) error, (2) that is plain, and (3) that affects his substantial rights.” United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal quotations and citation omitted), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). If these three conditions are met, this court has the discretion to correct the error, “but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Valenzuela- Quevedo, 407 F.3d at 733 (citation and internal quotations marks omitted). To demonstrate that the plain error affected his substantial rights, Cockerham has the burden of showing that the error “affected the outcome of the district court proceedings.” Id. (internal quotations and citation omitted). He must demonstrate “that the sentencing judge--sentencing under an advisory scheme rather than a mandatory one--would have reached a significantly different result.” Mares, 402 F.3d at 521. There is nothing in the record to suggest that Cockerham’s sentence would have been any less had the court applied the sentencing guidelines as advisory rather than mandatory. See Valenzuela-Quevedo, 407 F.3d at 733-34. Cockerham thus fails to establish prejudice to his substantial rights. The judgment of the district court is AFFIRMED.