United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-40150
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY DECKARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(9:02-CR-41-1)
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
The captioned case is before us on remand from the Supreme
Court of the United States in the wake of its opinion in United
States v. Booker.1 On remand, we have reviewed the supplemental
filings of the parties, reconsidered the facts and applicable law
in light of Booker and its progeny in both the Supreme Court and
*
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this opinion should not be published and is not precedent except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.
1
__ U.S. ___ 125 S.Ct. 738 (2005).
this circuit, and conclude that, when we review Deckard’s post-
Booker challenge under the applicable plain error standard, he has
failed to demonstrate entitlement to have his sentence vacated and
the case remanded for resentencing.
The government is likely correct that, as Deckard failed to
mount a Sixth Amendment challenge to the district court’s
application of the Sentencing Guidelines, and raising it for the
first time in his petition for certiorari, we should not consider
it. We nevertheless do so, albeit under plain error. We are
satisfied that if any such error exists, it would be harmless,
given the district court’s original sentencing. Even though the
Guidelines were treated as mandatory, the sentence (which Deckard
did not directly appeal) was correctly calculated and was facially
reasonable. More importantly, Deckard has not and cannot
demonstrate any likelihood that, were we to remand for
resentencing, the district court would impose a lesser sentence
when treating the Guidelines as advisory only. Thus any plain
error was clearly harmless and Deckard’s substantial rights
unaffected by the sentence that we perceive as reasonable.
Deckard’s conviction and sentence are, in all respects,
AFFIRMED.
2