United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
________________________ Clerk
No. 04-40696
Summary Calendar
________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN GENE BERRYMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Eastern District of Texas
No. 1:03-CR-143-ALL-MAC
________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Bryan Gene Berryman. United States v. Berryman, 115
F. App’x 240 (5th Cir. 2004). The Supreme Court vacated and remanded for further consideration
in light of United States v. Booker, 543 U.S. 220 (2005). Berryman v. United States, 125 S. Ct. 1950
(2005). This court requested and received supplemental letter briefs addressing the impact of Booker.
*
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 R. 47.5, the court has determined that this opinion should not be published and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. 04-40696
-2-
Berryman argues that the district court erred under Booker in enhancing his sentence based
on facts not admitted by him or found by a jury and in sentencing him under the mandatory guideline
scheme held unconstitutional in Booker. As Berryman concedes, our review is for plain error due to
his failure to raise an appropriate objection in the district court.
Under the plain error standard of review, the appellant must show that (1) there is an error
(2) that is clear or obvious and (3) that affects his substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993). If these factors are established, the decision to correct the forfeited error is within
this court’s sound discretion, which will not be exercised unless the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
The district court’s enhancement of Berryman’s sentence pursuant to a mandatory guideline
scheme based on facts not found by a jury or admitted by him constituted error that was plain. See
United States v. Mares, 402 F.3d 511, 520–21 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
However, Berryman has failed to demonstrate, with a probability sufficient to undermine confidence
in the outcome, that the error affected his substantial rights. See Mares, 402 F.3d at 520–21. He can
point to nothing in the record to show that he likely would have received a more lenient sentence if
the district court had acted under an advisory sentencing scheme. See id. Moreover, this court has
rejected his arguments that a Booker error is a structural error and that such errors are presumed to
be prejudicial. See United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126
S. Ct. 194 (2005).
Nothing in the Supreme Court’s Booker decision requires us to change our prior opinion in
this case. Accordingly, we reinstate that opinion. The judgment of the district court is AFFIRMED.