United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-20231
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHIRLEY THIBODEAUX,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-541-1
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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:*
This court affirmed the sentence of Shirley Thibodeaux.
United States v. Thibodeaux, 115 Fed. Appx. 708 (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17, 2004)(unpublished).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 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this opinion should not be published and is not precedent except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. 04-20231
-2-
Thibodeaux argues that the district court’s application of
sentencing guidelines adjustments based upon the amount of loss
and victims involved and for means of identification used
violated the Sixth Amendment. Thibodeaux concedes that her
argument is raised for the first time on appeal and is reviewable
for plain error only. See United States v. Mares, 402 F.3d 511,
520-21 (5th Cir. 2005), petition for cert. filed (U.S. Mar. 31,
2005) (No. 04-9517).
As Thibodeaux admits, the district court made no statements
indicating that it would have imposed a lower sentence under an
advisory guidelines regime. Accordingly, although the district
court’s adjustments to Thibodeaux’s sentence constitute error
that is plain, i.e., obvious, Thibodeaux cannot demonstrate that
the error affected her substantial rights. See id. at 521-22.
Thibodeaux correctly acknowledges that this court has
rejected the argument that a Booker error is a structural error
or that such error is presumed to be prejudicial. See United
States v. Martinez-Lugo, 411 F.3d 597, 611 (5th Cir. 2005). She
likewise concedes that our precedent forecloses her contention
that application of Booker’s remedial opinion to her violates the
Ex Post Facto Clause. See United States v. Scroggins, 411 F.3d
572, 577 (5th Cir. 2005). She raises these arguments to preserve
them for further review. Thibodeaux’s reliance on the plain
error analysis set forth in United States v. Dazey, 403 F.3d 1147
(10th Cir. 2005), is unavailing in light of Mares.
No. 04-20231
-3-
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Thibodeaux’s conviction and
sentence.