United States Court of Appeals
Fifth Circuit
F I L E D
In the January 23, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 04-30490
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELANDER MARK LACHNEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:03-CR-179-ALL
______________________________
ON REMAND FROM THE SUPREME This court affirmed Elander Lachney’s sen-
COURT OF THE UNITED STATES tence. United States v. Lachney, 119 Fed.
Appx. 640 (5th Cir. 2005) (per curiam). The
Before DAVIS, SMITH, and DENNIS, Supreme Court vacated and remanded for fur-
Circuit Judges. ther consideration in light of United States v.
Booker, 543 U.S. 220 (2005). Lachney v.
PER CURIAM:* United States, 125 S. Ct. 2276 (2005). We re-
quested and received supplemental letter briefs
addressing the impact of Booker.
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
*
and is not precedent except under the limited cir- (...continued)
(continued...) cumstances set forth in 5TH CIR. R. 47.5.4.
The only “indication” that might be gleaned
Lachney acknowledges that his challenge from the court’s remarks cuts against Lachney,
under Booker is subject to plain error review because the judge found that the guideline
because in the district court he did not object range was insufficient in view of Lachney’s
to the sentence on Sixth Amendment grounds. criminal history and the severity of the charged
“An appellate court may not correct an error conduct, so the court imposed a substantial
the defendant failed to raise in the district upward departure. Lachney cannot show that
court unless there is ‘(1) error, (2) that is plain, the sentence would have been lower if the
and (3) that affects substantial rights.’” United guidelines had been voluntary at the time of
States v. Mares, 402 F.3d 511, 520 (5th Cir.) sentencing. Indeed, in a commendable exer-
(quoting United States v. Cotton, 535 U.S. cise in candor, Lachney’s attorney, in her
625, 631 (2002)), cert. denied, 126 S. Ct. 43 supplemental letter brief, acknowledges that
(2005). “the record . . . does not support that the dis-
trict court would have imposed a lesser sen-
The government agrees that Lachney satis- tence if the guidelines had been advisory.”
fies the first two parts of the plain error test,
because the district court imposed a sentence Nonetheless, Lachney urges that the error
under guidelines it considered binding at the of applying the sentencing guidelines as man-
time of the sentence.1 He fails on the third datory, in contravention of Booker, constitutes
prong, however, because he cannot show an structural error and thus must be deemed to
error affecting substantial rights. That is be- satisfy the third prong of the plain error test.
cause there is no “indication in the record from This court has rejected the argument that such
the sentencing judge’s remarks or otherwise Booker error is structural. See United States
that gives us any clue as to whether [the judge] v. Martinez-Lugo, 411 F.3d 597, 601 (5th
would have reached a different conclusion.” Cir.) (per curiam), cert. denied, 126 S. Ct. 464
Id. at 522.2 (2005). “[W]e reject [the] argument that
Booker error is structural . . . .” United States
v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.)
1 (per curiam), cert. denied, 126 S. Ct. 194
United States v. de Jesus-Batres, 410 F.3d
(2005).
154, 165-66 (5th Cir. 2005) (“[A]n error is plain
even though an objection at trial was not warranted
under existing law but a super[s]eding decision Finally, Lachney asserts that even if the er-
before appeal reverses that well-settled law . . . . It ror is not deemed structural, “it should be con-
is enough that the law was settled at the time of sidered as among the class of errors that are
appellate consideration to make the error ‘plain.’”) ‘presumed prejudicial’” (citing United States v.
(citing Johnson v. United States, 520 U.S. 461, Olano, 507 U.S. 725, 735 (1993)). We have
468 (1997)), cert. denied, 2006 U.S. LEXIS 134, dismissed this contention as well. See, e.g., id.
and cert. denied, 2006 U.S. LEXIS 135, and cert. (“[W]e reject [the] argument . . . that Booker
denied, 2006 U.S. LEXIS 136 (U.S. Jan. 9, 2006). error should be deemed prejudicial . . . .”).
2
Id. at 166 (observing that “[a] defendant sen-
tenced before . . . Booker faces a difficult challenge
2
in establishing that the sentencing court’s use of a (...continued)
mandatory rather than an advisory Guidelines scheme actually affected the outcome of the pro-
(continued...) ceedings”).
2
AFFIRMED.
3