United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 25, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-30018
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY JAMES CATON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CR-20075-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gregory James Caton appeals the sentence imposed following
his guilty plea conviction of mail fraud and introduction of
unapproved new drugs into interstate commerce, in violation of
18 U.S.C. § 341 and 21 U.S.C. §§ 331(d), 355(a) and 333(a)(2).
Caton argues that his sentence violates United States v. Booker,
543 U.S. 220 (2005), because the district court sentenced him
based on facts neither admitted by Caton nor found by a jury and
the district court sentenced him under the pre-Booker, mandatory
*
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this opinion should not be published and is not precedent except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. 06-30018
-2-
Guidelines.
The lack of an objection in the district court on these
issues requires this court to review his arguments for plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005); United States v.
Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.), cert. denied, 126
S. Ct. 464 (2005). In Caton’s case there was clear or obvious
Booker error because the district court imposed a sentence based
on judge-found facts that were neither admitted by Caton nor
found by a jury. See Mares, 402 F.3d at 520. However, Caton
cannot establish that this error affected his substantial rights.
To meet this prong of the plain error test, “the error must have
affected the outcome of the district court proceedings.” Id. at
521.
To demonstrate that the error affected his substantial
rights, Caton argues that the district court attempted to be
lenient in determining his sentence and states that the district
court imposed the minimum Guidelines sentence. However,
imposition of a sentence at the low end of the Guidelines range
is not sufficient to demonstrate that a lower sentence would have
been imposed if the Guidelines had been advisory rather than
mandatory. United States v. Bringier, 405 F.3d 310, 318 n.4 (5th
Cir. 2005), cert. denied, 126 S. Ct. 264 (2005). Caton also
relies upon various comments made by the district court. The
No. 06-30018
-3-
district court’s comments, when read in context, do not indicate
displeasure with the pre-Booker Guidelines scheme.
Moreover, the district court stated that the Guidelines
calculations it was using were set forth in the presentence
report, which the district court found reasonably addressed the
criminal conduct in question. There is no evidence in the record
which suggests that the district court felt constrained by the
Guidelines and that if the judge had sentenced Caton under an
advisory sentencing regime rather than a mandatory one, Caton
would have received a lesser sentence. Caton has therefore
failed to establish that the judicial findings of fact upon which
his sentence is based is plain error under Booker. See United
States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005). Caton has
likewise failed to establish that the district court committed
plain error when it sentenced him under the pre-Booker, mandatory
Guidelines. Martinez-Lugo, 411 F.3d at 600-01. Finally, this
court has rejected the argument made by Caton that the error in
applying the Guidelines as mandatory is a structural error that
should be presumed prejudicial. Id. at 601 (neither Booker error
nor Fanfan error is structural).
For the foregoing reasons the judgment of the district court
is AFFIRMED.