United States Court of Appeals
Fifth Circuit
FILED
December 14, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-40529
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT G. BRITTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CR-16-3-DF-CMC
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Robert G. Britton appeals the consecutive 48-month sentences
imposed following entry of his guilty pleas to two counts of use
of a communication facility to facilitate a drug transaction in
violation of 21 U.S.C. § 843(b). Relying on United States v.
Booker, 125 S. Ct. 738 (2005), Britton contends that the district
court plainly erred when it sentenced him pursuant to a mandatory
application of the Sentencing Guidelines. Alternatively, Britton
asserts that the error is not harmless.
*
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this opinion should not be published and is not precedent except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. 04-40529
-2-
Because Britton did not object on these grounds in the
district court, our review is for plain error only. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.), cert.
denied, 126 S. Ct. 267 (2005). Britton bears the burden of
showing that (1) there is an error, (2) the error is plain, and
(3) the error affects substantial rights. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005).
In order to establish that the error in his case affects
substantial rights, Britton must show that the district court
would have reached a significantly different result under an
advisory Guidelines system. Id. at 521. Britton has failed to
point to anything in the record indicating that the same sentence
would not have been imposed had the district court known that the
Sentencing Guidelines were advisory. Given the lack of any
indication in the record that the district court would have
reached a different conclusion, Britton has failed to establish
reversible plain error. See id. at 520-22.
AFFIRMED.