United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-40191
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN HENRY HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1307-1
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
John Henry Harris appeals the 18-month sentence imposed
following entry of his guilty plea to a charge of transportation
of an undocumented alien within the United States by means of a
motor vehicle for private financial gain. Harris asserts for the
first time that under United States v. Booker, 125 S. Ct. 738
(2005), he was sentenced in violation of his constitutional
rights based on facts that were not admitted and that were not
found by a jury. In addition, he contends for the first time
*
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this opinion should not be published and is not precedent except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. 04-40191
-2-
that his sentence, which was imposed pursuant to a mandatory
Sentencing Guideline scheme, constituted plain error.
Harris argues that the errors made at sentencing affected
his substantial rights. He asserts that the district court’s
statement at sentencing, that it “would love to find a way to
[make an adjustment based on] aberrant conduct” demonstrates that
the errors affected the outcome of the proceedings.
We review Harris’s contentions for plain error. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.
2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed, (Mar. 31, 2005) (No. 04-9517). To
establish plain error, Harris must identify an error that is
obvious and that affects his substantial rights. See Mares,
402 F.3d at 520. If Harris makes this showing, we may exercise
our discretion to notice a forfeited error if “the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. (citation and internal quotations
omitted).
In Booker, the Supreme Court determined that the system of
enhancements established by the United States Sentencing
Guidelines violated the Sixth Amendment and reaffirmed that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
No. 04-40191
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doubt.” Booker, 125 S. Ct. at 749-50, 756. The Court also
excised from the Sentencing Reform Act the mandatory duty of
district courts to apply the Federal Sentencing Guidelines and
effectively rendered the Guidelines advisory. See id. at 764.
Although Harris has established obvious error, he must still
demonstrate that the error “affected the outcome of the district
court proceedings.” Valenzuela-Quevedo, 407 F.3d at 733
(internal quotation marks and citation omitted). He must show
that “the sentencing judge -- sentencing under an advisory scheme
rather than a mandatory one -- would have reached a significantly
different result.” See Mares, 402 F.3d at 521-22.
Harris has not made the required showing. A review of the
record indicates that the district court’s statement was not a
comment concerning its dissatisfaction with the inflexibility of
the pre-Booker mandatory Sentencing Guidelines, nor was the
statement an expression of the district court’s desire to
sentence Harris to a lesser term of imprisonment. Before
imposing sentence, the district court explained that a departure
based on aberrant conduct did not apply in Harris’s case. The
district court stated that although it was denying Harris a
departure, it was willing to sentence Harris at the bottom of the
Guideline range.
Harris has not shown that the errors that occurred at
sentencing “affected the outcome” of the proceedings.
Valenzuela-Quevedo, 407 F.3d at 733 (internal quotation marks and
No. 04-40191
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citation omitted); see United States v. Bringier, 405 F.3d 310,
318 & n.4 (5th Cir. 2005). Harris has not shown that the
district court, sentencing in a post-Booker proceeding, would
have reached a “significantly different result.” Mares, 402 F.3d
at 521-22. Accordingly, Harris has not established plain error,
and his sentence is AFFIRMED. Harris’s motion for expedited
consideration is DISMISSED AS MOOT.
AFFIRMED; MOTION DISMISSED.