United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 10, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 03-40622
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CHAVARRIA,
Defendant-Appellant.
On Appeal from the United States District Court
For the Southern District of Texas
Corpus Christi Division, No. CR-02-172
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES and DENNIS, Circuit Judges.*
PER CURIAM:**
This court affirmed the judgment of conviction and
sentence of Jose Chavarria. United States v. Chavarria, 377 F.3d
475 (5th Cir. 2004). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). See Chavarria v. United States, 125 S. Ct. 1055
*
Due to his retirement on Dec. 8, 2004, Judge Charles W. Pickering,
Sr. did not participate in this decision. The case is being decided by a quorum.
28 U.S.C. § 46(d).
**
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opinion should not be published and is not precedent except under the limited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.
(2005). We requested and received supplemental letter briefs
addressing the impact of Booker.
At the district court and in his original appeal to this
court, Chavarria objected to the district court’s enhancement for
obstruction of justice. We must first determine if this objection
was sufficient to preserve Booker error.
To preserve Booker error, a defendant need not explicitly
cite Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
Blakely v. Washington, 542 U.S.296, 124 S. Ct. 2531 (2004), or the
Sixth Amendment. See United States v. Akpan, 407 F.3d 360, 376
(5th Cir. 2005). However, he must “adequately apprise[] the court
that he was raising a constitutional error.” United States v.
Olis, 429 F.3d 540, 544 (5th Cir. 2005). The argument must be
couched in terms that the facts used to enhance the sentence were
not proven to a jury beyond a reasonable doubt. See Akpan, 407
F.3d at 376, 377 (finding that one defendant, who had objected on
reasonable doubt grounds, had preserved Booker error, but finding
that the other, who did not “couch his arguments ... in the same
terms,” did not preserve Booker error); United States v. Bringier,
405 F.3d 310, 315 (concluding that the defendant had not preserved
his Booker objection even though he objected at trial that the
evidence did not support an enhancement because the court did not
“consider his arguments below in the ‘essence’ of Blakely and the
Sixth Amendment”).
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Both at trial and on appeal, Chavarria objected on the
grounds that the evidence did not sufficiently establish that his
behavior constituted obstruction of justice. In other words, he
argued that his conduct was an outburst brought on by the pain and
stress of the situation, and not a threat meeting the requirements
for enhancement of sentence because of his obstruction of justice.
His arguments, however, lack in aim, focus, or direction toward
objection on Booker grounds. They do not apprise the court that
such issues are at stake because they do not reference the need for
those facts to have been proven to a jury beyond a reasonable
doubt. Accordingly, because Chavarria’s arguments do not “capture
the essence” of Blakely, Booker, Apprendi, and the Sixth Amendment,
they do not serve to preserve Chavarria’s arguments for either
harmless error or plain error review.
A defendant prevails under plain error review where he
proves (1) that error occurred; (2) that the error is plain; and
(3) that the error affected his substantial rights. If all three
of those elements exist, a fourth element appears: A court should
correct the error where it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” The
burden to prove all of the above falls on the defendant. United
States v. Olano, 507 U.S. 725, 732-736 (1993). There is no
question but that Chavarria has met the first two requirements.
See, e.g., United States v. Mares, 402 F. 3d 511, 521 (5th Cir.
2005), cert. denied, 126 S. Ct. 43 (2005) (“Mares’ sentence was
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enhanced based on findings made by the judge that went beyond the
facts admitted by the defendant or found by the jury. . . . Mares
has therefore established Booker error. Since Booker, the error is
also plain.”) This circuit’s precedent requires that a defendant
alleging Booker error must meet the third prong by showing that the
sentencing court “would have reached a significantly different
result” under an advisory sentencing scheme rather than a mandatory
one. Id. at 521. As Chavarria has not pointed to any such
evidence, he fails the third prong of plain error review. As in
Taylor, Chavarria cannot survive plain error review, and therefore
cannot satisfy the more demanding “extraordinary circumstances”
standard of review that applies to his particular case.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior decision in this case, we adhere to
our prior determination and therefore reinstate our judgment
AFFIRMING Chavarria’s conviction and sentence.
AFFIRMED.
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