United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 6, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30275
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL WEST,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
(Criminal No. 03-50094-01)
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ON REMAND FROM THE UNITED STATES SUPREME COURT
Before REAVLEY, DAVIS, and WIENER Circuit Judges.
PER CURIAM:*
This matter is before us on remand from the United States
Supreme Court for reconsideration in light of its recent opinion in
United States v. Booker.1 At our request, the parties have
submitted supplemental letter briefs addressing the impact of
Booker. For the following reasons, we find that Booker does not
affect Defendant-Appellant Darrell West’s sentence.
I. BACKGROUND
*
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this opinion should not be published and is not precedent except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.
1
543 U.S. ——, 125 S. Ct. 738 (2005).
West pleaded guilty to conspiring to distribute 50 grams or
more of cocaine base, distributing 50 grams or more of cocaine
base, and possessing with the intent to distribute 50 grams of
cocaine base. The district court sentenced West to 292 months of
imprisonment. West appealed his sentence, and we affirmed in an
unpublished opinion.2 West then appealed his sentence to the
United States Supreme Court, which, as noted above, remanded to us
for reconsideration in light of Booker.
II. DISCUSSION
A. Standard of Review
West raised his Booker claims for the first time on appeal.
Therefore, we review for plain error.3 This means that we will not
remand for resentencing unless there is “(1) error, (2) that is
plain, and (3) that affects substantial rights.”4 If the
circumstances meet all three criteria, we may exercise our
discretion to notice the error, but only if it “seriously affects
the fairness, integrity, or public reputation of judicial
proceedings.”5
Since Booker, sentencing under mandatory Guidelines
constitutes (1) error, and that error is (2) plain.6 Whether the
2
U.S. v. West, No. 04-30275, 117 Fed. Appx. 340 (5th Cir. Dec.
8, 2004).
3
U.S. v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
4
U.S. v. Cotton, 535 U.S. 625, 631 (2002).
5
Id.
6
Mares, 402 F.3d at 521.
2
error affects substantial rights is a more complex inquiry in which
the defendant bears the burden of proof, and he carries his burden
if he can “demonstrate a probability ‘sufficient to undermine
confidence in the outcome.’”7 The defendant demonstrates such a
probability when he identifies from the record an indication that
the sentencing judge would have reached a significantly different
result under an advisory Guidelines scheme.8
B. Merits
West concedes that he cannot meet his burden to show plain
error under Mares. Instead, West presents three alternative
arguments. First, he urges the court to reconsider Mares. Mares,
however, is the settled law of this circuit, and we can revisit it
only en banc or following a Supreme Court decision that effectively
overturns it. Second, West argues that Booker error is structural,
and that we should therefore remand for resentencing on that
ground. This circuit, however, has determined that Booker error is
not structural.9 Finally, West insists that Booker error should be
presumed prejudicial. Again, this circuit has determined that
Booker error should not be presumed prejudicial.10 West presents
no viable ground for remand. Accordingly, we affirm his original
sentence.
7
Id. (quoting U.S. v. Dominguez Benitez, 542 U.S. 74 (2004)).
8
Id. at 522.
9
U.S. v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005);
U.S. v. Arnold, 416 F.3d 349, 2005 WL 1546254 at *9 n.23 (5th Cir.
2005).
10
Arnold, 419 F.3d 349, 2005 WL at *9 n.23.
3
III. CONCLUSION
As the district court did not commit plain error, West’s
sentence is
AFFIRMED.
4