United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 3, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 03-21213
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DUDLEY EARL MYERS,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. H-03-R-123-ALL
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY and HIGGINBOTHAM, Circuit Judges.1
PER CURIAM:2
This court affirmed Dudley Earl Myers’s conviction and
sentence. United States v. Myers, 108 Fed. Appx. 937 (5th Cir.
2004). The Supreme Court vacated and remanded for further
consideration in the light of United States v. Booker, 125 S.Ct.
738 (2005). Myers v. United States, 125 S.Ct. 2281 (2005). We
1
Judge Pickering was a member of the original panel but
retired from the Court on December 8, 2004 and, therefore, did not
participate in this decision.
2
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this opinion should not be published and is not precedent except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.
requested and received supplemental letter briefs addressing the
impact of Booker.
In his supplemental brief, Myers argues that his Sixth
Amendment rights were violated because his sentence was enhanced
based on facts that he did not admit in his guilty plea. He
contends that, under Booker, he can be held accountable only for
the $5,000 loss alleged in the count to which he pleaded guilty.
Although Myers objected to the sentencing enhancements before
the district court, he did not object on Sixth Amendment grounds.
Accordingly, we review his contentions under the plain error
standard. United States v. Mares, 402 F.3d 511, 520 (5th Cir.),
cert. denied, ___ S.Ct. ___, 200-5 WL 816208 (U.S. Oct. 3, 2005).
In the light of Booker, the district court plainly erred by
calculating Myers’s Guidelines sentence based on facts not admitted
by Myers in his guilty plea and by viewing the Guidelines as
mandatory. Id. at 520-21. Myers, however, has failed to carry his
burden of establishing that his substantial rights were affected by
the error. He has not pointed to any evidence in the record or
statements by the district court indicating that the court would
have imposed a lesser sentence under advisory sentencing
guidelines. See id. at 521-22. The district court stated that it
had planned to impose a sentence at the upper end of the guideline
range, but sentenced Myers at the low end based on the Government’s
recommendation pursuant to the plea agreement. The court noted for
the record that it would have imposed the same sentence even if
2
Myers were entitled to a further reduction of his base offense
level. Under these circumstances, there is no basis for believing
that the district court would have imposed a lesser sentence had it
known that it had the discretion to do so.
For the foregoing reasons, 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 Myers’s conviction and sentence.
JUDGMENT REINSTATED.
3