United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 4, 2006
Charles R. Fulbruge III
Clerk
No. 04-40747
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRESTON JOSEPH ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-189-TH-WCR-1
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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 Preston Joseph Robinson.
United States v. Robinson, 115 F. App’x 259 (5th Cir. 2004). The
Supreme Court vacated and remanded for further consideration in
light of United States v. Booker, 543 U.S. 220 (2005). Robinson
v. United States, 125 S. Ct. 1949 (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this opinion should not be published and is not precedent except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. 04-40747
-2-
Robinson 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. Our review is
for plain error due to his failure to raise an appropriate
objection in the district court. See United States v. Mares, 402
F.3d 511, 520 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
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, 731-37 (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. at 736.
The district court’s enhancement of Robinson’s sentence
pursuant to a mandatory guideline scheme based on facts that were
not found by a jury or admitted by him constituted error that was
plain. See Mares, 402 F.3d at 520-21. Robinson argues that the
error affected his substantial rights because it was structural
or because prejudice should be presumed. However, these
arguments are foreclosed. See United States v. Malveaux, 411
F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194
(2005). Because the record does not show that Robinson likely
would have received a more lenient sentence if the district court
No. 04-40747
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had acted under an advisory sentencing system, Robinson has not
shown that the district court’s error affected his substantial
rights. See Mares, 402 F.3d at 521.
Nothing in the Supreme Court’s Booker decision requires us
to change our prior affirmance in this case. Accordingly, we
reinstate that affirmance. The judgment of the district court is
AFFIRMED.