United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-10769
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAYLATE BROOKS
Defendant-Appellant
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-46-2-A
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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 conviction and sentence of Raylate
Brooks. United States v. Brooks, No. 04-10769 (5th Cir. Dec. 17,
2004) (unpublished). The Supreme Court 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 Booker’s impact.
*
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this opinion should not be published and is not precedent except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. 04-10769
-2-
Brooks argues that his sentence is illegal under Booker
because he was sentenced to “eight years [of] imprisonment on the
basis of guidelines enhancements which were unconstitutionally
applied to him by the district court as they were neither proved
to a jury beyond a reasonable doubt, nor admitted by him.” He
also acknowledges that there “is no statement in the record that
could support an inference that [he] would receive a lesser
sentence from the sentencing judge if the case was remanded under
ordinary circumstances.” Id. He argues, however, that the
district court will be “compelled” to give him a lesser sentence
because due process and ex post facto principles require that the
court resentence him based on a strict application of the
guidelines, without any increase in his sentence based on
enhancements that violate the Sixth Amendment under Booker. Id.
at 1-3.
Brooks concedes that he failed to preserve his argument in
the district court and that review of his argument is for 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);
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
In order to establish that he is entitled to relief under a
plain-error analysis, Brooks bears the burden of demonstrating,
inter alia, that the sentencing court would have imposed a
different sentence had it sentenced him under an advisory, rather
No. 04-10769
-3-
than mandatory, application of the guidelines. See Valenzuela-
Quevedo, 407 F.3d at 733. Brooks concedes that he cannot make
such a showing. Brooks’s argument that he must be resentenced
under a strict application of the guidelines, without any
increase based on enhancements not found by a jury or admitted by
him, is foreclosed by United States v. Scroggins, 411 F.3d 572,
576-77 (5th Cir. 2005). Accordingly, we conclude that nothing in
the Supreme Court’s Booker decision requires us to change our
prior affirmance in this case. We therefore reinstate our
judgment affirming Brooks’s conviction and sentence.
AFFIRMED