United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 13, 2005
Charles R. Fulbruge III
Clerk
02-21017
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE BOB MONCRIEF,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:00-CR-00544-6)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, Circuit Judge, and LYNN,* District Judge.**
PER CURIAM:***
In late 2004, this court affirmed Joe Bob Moncrief’s
convictions of conspiracy, in violation of 18 U.S.C. §§ 371 &
1956(h); of two counts of bank fraud, in violation of 18 U.S.C. §
1344; of five counts of illegal money transactions, in violation of
18 U.S.C. § 1957(a); and of nine counts of money laundering, in
*
District Judge of the Northern District of Texas, sitting by
designation.
**
Judge Pickering was a member of this panel when the opinion
issued on 1 November 2004, but subsequently retired. Accordingly,
this matter is decided by a quorum. See 28 U.S.C. § 46(d).
***
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this opinion should not be published and is not precedent except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.
violation of 18 U.S.C. § 1956(a)(1). United States v. Moncrief,
133 F. App’x 924, 932 (5th Cir. 2004). It also affirmed his
sentence to 210 months imprisonment. Id. The Supreme Court
granted Moncrief’s petition for writ of certiorari; vacated our
judgment; and remanded the case for further consideration in the
light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738
(2005). Moncrief v. United States, 125 S. Ct. 2273 (2005). We
requested, and received, supplemental briefs addressing the impact
of Booker. Having reconsidered our decision pursuant to the
Supreme Court’s instructions, we reinstate our judgment affirming
the conviction, but remand for resentencing.
Moncrief raised Booker-error for the first time on appeal;
therefore, our review is only for plain error. See United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
denied, ___ S. Ct. ___, 2005 WL 816208 (U.S. 3 Oct. 2005) (No. 04-
9517). Plain error review permits an appellate court to correct a
forfeited issue only when, inter alia, there is “(1) error (2) that
is plain and (3) that affects substantial rights”. United States
v. Cotton, 535 U.S. 625, 631 (2002) (citation and internal
quotations marks omitted). Because the district court sentenced
Moncrief under the mandatory Guidelines held unconstitutional in
Booker, the first two prongs are satisfied. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005), petition for
2
cert. denied, ___ S. Ct. ___, 2005 WL 1811485 (U.S. 3 Oct. 2005)
(No. 05-5556). As discussed infra, Moncrief has shown “the outcome
would have been different if the district court had been operating
under an advisory system”, United States v. Holmes, 406 F.3d 337,
365 (5th Cir. 2005), petition for cert. denied, ___ S. Ct. ___,
2005 WL 2414188 (U.S. 3 Oct. 2005) (No. 05-38); accordingly, he has
also satisfied the third prong of plain-error review.
Moncrief met his burden of showing his substantial rights were
affected by “demonstrat[ing] a probability ‘sufficient to undermine
confidence in the outcome’” of his sentencing. Mares, 402 F.3d at
521 (quoting United States v. Dominguez Benitez, 124 S. Ct. 2333,
2340 (2004)). At sentencing, the district court stated that,
although a review of Moncrief’s life made the sentencing “all the
more heart-breaking”, the court was unable to grant a downward
departure because of the constraints imposed by the Guidelines.
The sentencing judge imposed the minimum term of imprisonment
allowed under the Guidelines.
United States v. Pennell, 409 F.3d 240 (5th Cir. 2005),
considered similar language from a defendant’s sentencing hearing,
at which the district court stated:
Once again, I say that from many standpoints
of fairness and justice, it might be better to
sentence people based on actual loss, but I
don’t think that’s the way the guidelines are
written or the appellate courts interpreted
them in most cases. So I feel constrained to
overrule your objection.
3
Id. at 245 (emphasis added). There, the court imposed the lowest
sentence possible under the then-mandatory Guidelines. Id. at 246.
On appeal, our court remanded the case for resentencing, after
interpreting the district court’s statement to show that, “had [the
judge] been free to do so[,] he would have selected a different
loss figure which would have resulted in a lesser sentence”. Id.
The language used by the district court at Moncrief’s
sentencing is sufficiently similar to the district court’s in
Pennell. Because Moncrief likely would have received a different
sentence, had the judge not felt constrained by the then-mandatory
Guidelines, Moncrief has satisfied the third prong of the plain
error test. See id. (noting it was “likely” that the district
court would have imposed a lesser sentence had the judge not been
bound under the mandatory Guidelines).
Even though Moncrief has satisfied these three prongs, we have
discretion whether to correct plain error; generally we will not do
so unless the error “seriously affected the fairness, integrity or
public reputation of judicial proceedings”. Id. In this regard,
because the plain error likely increased his sentence, Moncrief has
made the requisite showing.
Finally, as recognized by this court on plain error review on
direct appeal: the district court committed clear error by using
the 2000 edition of the Sentencing Guidelines, rather than the 2001
edition, in determining the applicable Guidelines range for
4
Moncrief’s sentence; but Moncrief failed to show such error
affected his substantial rights. Moncrief, 133 F. App’x at 939.
(Moncrief now appears to urge his sentence should be imposed in the
light of the 2002 edition.) Although the Supreme Court limited
its remand to this court for further consideration in the light of
Booker, 125 S. Ct. At 738, we are confident that, on remand, the
district court will consider the correct edition of the Guidelines
in resentencing Moncrief.
Therefore, we AFFIRM Moncrief’s conviction; VACATE his
sentence; and REMAND for resentencing consistent with Booker.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED