United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 14, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 04-30559
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE N. ROBINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CR-101-ALL-C
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant Wayne Robins challenges his sentence under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
Because he did not preserve his Booker error and because he cannot
show that his substantial rights were affected, we AFFIRM.
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.
*
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opinion should not be published and is not precedent except under the limited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.
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.
In the district court, Robins’s objections were not
couched in constitutional terms; he merely asserted that the
district court’s factual findings were not supported beyond a
preponderance of the evidence standard. Because he failed to
properly alert the court to a constitutional error or adequately
“capture the essence” of Blakely, Booker, and Apprendi, we review
for plain error.
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. United States
v. Olano, 507 U.S. 725, 732-35, 113 S. Ct. 1770, 1777-78 (1993).
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. Id.
at 736, 113 S. Ct. at 1779. Robins has met the first two require-
ments. See, e.g., United States v. Mares, 402 F. 3d 511, 521 (5th
Cir. 2005), cert. denied, 126 S. Ct. 43 (2005). This circuit’s
precedent requires that a defendant alleging Booker error must meet
the third prong by showing that the sentencing court “would have
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reached a significantly different result” under an advisory
sentencing scheme rather than a mandatory one. Id. at 521.
Here, the district court exercised its discretion to
depart upwardly because Robins’s criminal history was under-
represented. Robins cannot point to any evidence that the district
court would have imposed a lower sentence but for the mandatory
guidelines scheme; therefore, he has not met his burden of showing
that any Booker error affected his substantial rights. See United
States v. Saldana, 427 F.3d 298, 308 n.38 (5th Cir. 2005) (“[W]e
doubt whether a defendant could ever overcome plain error review of
a claimed Booker violation in cases where the district court has
upwardly departed.”)(citing United States v. Lee, 399 F.3d 864
(7th Cir. 2005)). Accordingly, Robins’s sentence is
AFFIRMED.
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