United States v. Mares

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 4, 2005

Charles R. Fulbruge III
Clerk
No. 03-21035

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

SAMUEL RICHARD MARES, JR.,

Defendant - Appellant.

Appeal from the United States District Court
For the Southern District of Texas

Before JOLLY, DAVIS and CLEMENT, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Samuel Richard Mares, Jr., appeals his conviction and sentence

for the crime of being a felon in possession of ammunition in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We find no

merit to any of Mares’ arguments challenging his conviction which

we affirm.

The principal issue in this appeal is the legality of Mares’

sentence following the Supreme Court’s decision in Booker/Fanfan.

United States v. Booker, 125 S. Ct. 738, 160 L. Ed. 2d 621, 2005
U.S. LEXIS 628 (2005). Mares raised this issue for the first time

in his brief filed with us on direct appeal. We agree with the

Eleventh Circuit that our review is for plain error. United States

v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005).

Because the defendant did not carry his burden of establishing that

the error affected the outcome of the proceeding, we find no plain

error and affirm the sentence.

I.

Mares’ conviction arose from an altercation that occurred

outside a Houston neighborhood bar on July 1, 2002. That night,

Juan and Daniel Lopez confronted Mares and his friend, Alfredo

Martinez, because they suspected Mares and Martinez had attempted

to burglarize Juan Lopez’s truck. Mares and Martinez were each

stabbed during the fight. Several witnesses testified that shots

were fired from the PT Cruiser in which Mares and Martinez fled the

scene.

At about 1:00 a.m. the next morning, Houston police were

summoned to the apartment of Isabel Cervantez, Martinez’s

girlfriend. There was a blood-stained PT Cruiser in the parking

lot, and an ambulance and a fire truck were already on the scene.

Paramedics treated Mares and Martinez there and loaded them into

separate ambulances. As Mares was being loaded into the ambulance,

one of the paramedics noticed something bulky in Mares’ pocket.

The paramedic removed the object, a magazine clip with twenty-seven

rounds of ammunition.

2
 There was some confusion as to the identity of the suspects

because one paramedic described the patient he assisted as muscular

and stocky with tattoos on his arms. Mares, although muscular and

stocky, has a large tattoo on his back but none on his arms.

Martinez is much smaller with tattoos on his arms. Some of the

paramedics later testified that they had retrieved the magazine

clip from the patient with tattoos on his arms. Furthermore,

Cervantez testified that she checked Mares’ pockets for

identification before he left with the paramedics and did not find

a magazine clip. She also testified that when Mares left the

apartment he was wearing boxer shorts, not pants.

At trial, the defense focused on the issue of identification.

Based on this strategy, defense counsel subpoenaed Martinez to

testify. Martinez’s attorney indicated that Martinez intended to

“take the Fifth with respect to any questions.” Martinez’s

attorney indicated that if called to the stand, Martinez would give

no information other than his name and address because any other

testimony could link him to the incident outside the bar and

potentially expose him to criminal liability. Mares’ counsel then

requested that the court instruct Martinez to take the stand and

invoke his privilege question-by-question outside the presence of

the jury. The court, however, declined to do so, finding that

Martinez had a “legitimate concern that would entitle him to invoke

his Fifth Amendment privilege.”

In her opening summation, the prosecutor remarked to the jury

3
that Cervantez was not a credible witness and that she had a motive

to lie, unlike the paramedic, who had no reason to lie about

finding the magazine clip in Mares’ pocket. In her rebuttal

argument, she warned the jury that the “[d]efense wants you to get

lost behind a file of smoke with regard to whether or not there is

a tattoo on the person that was transported.” She concluded by

saying: “ladies and gentlemen of the jury, don’t get caught up in

the smoke screen. We’re here to seek justice. That’s the purpose

here, to second [sic] justice; and it’s no coincidence, it’s no

mistake.” The jury returned a verdict of guilty.

The district court sentenced Mares to 120 months’

imprisonment and three years’ supervised release. We will discuss

the sentence in more detail below.

II.

We address first Mares’ challenges to his conviction.

A.

Mares argues first that the district court’s refusal to allow

Mares’ counsel to question Martinez outside the presence of the

jury and rule on Martinez’s Fifth Amendment objection to each

question deprived Mares of his right to present a defense.

Martinez’s testimony was critical to Mares’ defense because

Martinez was present during the altercation and when the paramedics

transported both men to the hospital. Mares argues that the

district court had an obligation to conduct a careful, question-by-

question assessment as to whether the Fifth Amendment was properly

4
invoked as to each question, citing United States v. Melchor

Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976).

A district court’s decision to exclude a witness’s testimony

based on an invocation of the witness’s Fifth Amendment privilege

is reviewed for an abuse of discretion. United States v. Boyett,

923 F.2d 378, 379 (5th Cir. 1991). The trial court should inquire

into the legitimacy and scope of the privilege to assess the

credibility of the witness’s fear of self-incrimination before

excluding the testimony of that witness. Id. at 380. It should

also determine what the boundaries of the privilege are in relation

to the testimony sought by the defendant. Id. A witness may be

totally excused only if the court determines that “he could

legitimately refuse to answer essentially all relevant questions.”

United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980).

In this case, the district court acted within its discretion

in determining the scope of Martinez’s Fifth Amendment privilege.

At trial, the court stated that it was satisfied, based on the

evidence already presented in the case, that Martinez had a

legitimate basis for invoking his Fifth Amendment privilege to

virtually all questions asked of him that would be relevant to

Mares’ defense.1 By the time Mares attempted to call Martinez to

testify, the Government had already presented substantial evidence

1
The court did allow Mares to call Martinez for the purpose of
demonstrating the location of his tattoos as evidence that the
paramedics mistakenly identified Mares as the man carrying the magazine
clip.

5
of Martinez’s involvement in activities that could have led to

charges for aggravated robbery, burglary, deadly conduct, and

unlawfully carrying a firearm. The evidence up to that point had

shown that Martinez had burglarized Lopez’s truck and had fired a

gun in the direction of Lopez and others at the scene.

Furthermore, it seems clear that, given Mares’ defense

strategy of disputing the Government’s identification of Mares as

the person from whom the ammunition clip was recovered, Mares

intended to demonstrate through Martinez’s testimony that it was

Martinez, not Mares, who possessed the magazine clip and that he

was the only one who fired shots after the altercation outside the

bar. The district court understandably concluded that Martinez

invoked his privilege because he had a reasonable apprehension of

self-incrimination as a result of his responses to essentially any

questions relevant to Mares’ defense.

The court was presented with sufficient evidence with which to

understand the likely implications of Martinez’s testimony and,

thus, the scope of his privilege. The district court did not abuse

its discretion in upholding Martinez’s invocation of his Fifth

Amendment privilege.

B.

Mares argues next that certain comments made by the prosecutor

in her closing argument amounted to prosecutorial misconduct and

reversible error. In the prosecutor’s closing argument, focusing

on the confusion surrounding the identification of Mares by the

6
paramedics and by the Lopezes, the prosecutor said, regarding

Cervantez, a witness for the defense: “[l]adies and gentlemen of

the jury, she is not credible, and you can’t believe here [sic].

Charles Rizzo [the paramedic] had absolutely no reason to lie to

you about finding this on defendant.” And later, “She’s the one

with the motive to lie and not Charles Rizzo and the paramedics who

have absolutely no motive.” Mares, although he did not object at

trial, contends on appeal that these comments amounted to improper

bolstering of a Government witness. Mares also points to other

comments made by the prosecutor, arguing that the prosecutor

improperly impugned the role of defense counsel.

Because Mares failed to make a contemporaneous objection to

the prosecutor’s closing remarks in the trial court, this court

will review any improper remark only for plain error. United

States v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999).

Even with a contemporaneous objection to an allegedly improper

remark by the prosecutor, the defendant’s burden of establishing

that it constitutes reversible error is substantial. United States

v. Virgen-Moreno, 265 F.3d 276, 290 (5th Cir. 2001). The

determinative question in such an inquiry is “whether the

prosecutor’s remarks cast serious doubt on the correctness of the

jury’s verdict.” Id. In determining whether the remarks

constitute reversible error, the court should consider "(1) the

magnitude of the prejudicial effect of the prosecutor's remarks,

(2) the efficacy of any cautionary instruction by the judge, and

7
(3) the strength of the evidence supporting the conviction." United

States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1993).

The prosecutor’s statements purportedly impugning the role of

defense counsel were not improper. Rather, the prosecutor’s

statements in this case, that defense counsel “wants you [the jury]

to get lost behind a file of smoke,” do not rise to the level of a

challenge of either the integrity or the character of the defense

counsel.

In addition, even if the prosecutor’s statements were

improper, either individually or when considered as a whole, they

were not sufficiently prejudicial to “cast serious doubt on the

correctness of the jury’s verdict.” Virgin-Moreno, 265 F.3d at 290.

Neither did they affect the substantial rights of the Defendant.

The district court did remind the jury before closing arguments

that attorneys’ comments are not evidence and that they should base

their decision solely on the evidence admitted in the case. This

instruction was also repeated in the written jury charge.

Furthermore, the Government presented substantial evidence of

Mares’ guilt. No reversible error occurred.

C.

Finally, Mares argues that the statute of conviction in this

case, 18 U.S.C. § 922(g)(1), is an unconstitutional infringement on

the fundamental individual right to keep and bear arms as

guaranteed by the Second Amendment. As Mares concedes, this

argument is foreclosed by United States v. Darrington, 351 F.3d 632

8
(5th Cir. 2003), cert. denied, 158 L. Ed. 2d 994, 124 S. Ct. 2429,

(2004). Mares also argues § 922(g)(1) is unconstitutional on its

face because it does not require a “substantial” effect on

interstate commerce. Again, Mares concedes that this court has

rejected these arguments in several cases. See United States v.

Daugherty, 264 F.3d 513, 517 (5th Cir. 2001), cert. denied, 534

U.S. 1150 (2002); United States v. Gresham, 118 F.3d 258, 264-65

(5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998); United States

v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996), cert. denied, 519 U.S.

1070 (1997).

D.

For reasons set forth above, we affirm Mares’ conviction.

III.

Mares also challenges his sentence on the ground that the

district court enhanced his sentence based on facts found by the

judge and that under Blakely and Booker, this sentence imposed in

a mandatory Guideline regime violated his Sixth Amendment right to

a jury trial. Blakely v. Washington, 124 S. Ct. 2531, 159 L. Ed.

2d 403, 2004 U.S. LEXIS 4573, (2004); United States v. Booker, 125

S. Ct. 738; 160 L. Ed. 2d 621; 2005 U.S. LEXIS 628 (2005). Mares

did not object to his sentence on this basis in the district court

and raises it for the first time on direct appeal.

The district court determined that Mares’ base offense level

was 24. Based on the court’s finding that Mares possessed the

9
ammunition in connection with an armed robbery,2 the court added a

4-point enhancement as authorized by U.S. Sentencing Guidelines §

2K1.2(b)(5), bringing his offense level up to 28. In light of

Mares’ criminal history score of IV, his sentence range under the

Guidelines was 110-137 months, subject to the statutory maximum

penalty of 120 months. 18 U.S.C. § 924(a)(2). The district court

sentenced Mares to 120 months imprisonment and 3 years supervised

release.

A.

Because of the effect the Booker/Fanfan opinion will have on

sentencing in a large number of cases in this circuit and because

this is the first sentencing decision rendered by this court since

the Supreme Court issued Booker/Fanfan, we think it appropriate for

us to explain at the outset how we understand the Supreme Court

expects sentencing will proceed under its decision in

Booker/Fanfan. After circulating this opinion to all members of

the court this panel has benefitted from and incorporated into the

opinion many of their comments. Also, we are indeed fortunate to

have the benefit of thoughtful opinions from the First, Second,

Fourth, Sixth, Ninth, and Eleventh Circuits implementing the

2
Mares objected to the facts set forth in the PSR supporting his
involvement in the robbery while in possession of the ammunition on the
basis that they did not comport with the facts proven at trial. The
district court overruled the objection and found that the trial evidence
established his participation in the robbery. Mares did not thereafter
challenge the sufficiency of the evidence for the court’s factual
finding or otherwise object to the enhancement.

10
Booker/Fanfan decision.3

B.

The Sentencing Reform Act of 1984(“SRA”) and the Guidelines

issued by the United States Sentencing Commission under the

authority of that Act have governed federal criminal sentences

since November 1, 1987. Section 3553 of the Act specifies several

factors for sentencing judges to follow in determining a sentence.

One of the factors is the applicable provisions of the Guidelines.

Subsection 3553(b)(1) generally requires the sentencing judge to

impose a sentence within the range as calculated by the Guidelines,

taking into account the facts of the defendant’s offense conduct

and the defendant’s criminal record. The sentencing judge is

permitted to select a sentence above or below the Guideline range

only if the judge finds circumstances “not adequately taken into

consideration by the Sentencing Commission.” 18 U.S.C. §

3553(b)(1). The SRA also provides for the appeal of a sentence by

the defendant or the government under limited circumstances. See

18 U.S.C. §§ 3742 (a) and (b). These sections also specify the

grounds upon which an appellate court is permitted to review a

3
See United States v. Crosby, ___ F.3d ____, 2005 WL 240916, 2005
U.S. App. LEXIS 1699 (2d Cir. Feb. 2, 2005); United States v. Ameline,
___ F.3d ____, 2005 WL 350811, 2005 U.S. App. LEXIS 2032, amended at
2005 U.S. App. LEXIS 2178 (9th Cir. Feb. 9, 2005); United States v.
Hughes, 396 F.3d 374 (4th Cir. Jan. 24, 2005); United States v. Oliver,
___ F.3d ____, 2005 WL 233779, 2005 U.S. App. LEXIS 1623 (6th Cir. Feb.
2, 2005); United States v. Rodriguez, ___ F.3d ____, 2005 WL 272952,
2005 U.S. App. LEXIS 1832 (11th Cir. Feb. 4, 2005); United States v.
Antonakopoulos, F.3d , 2005 WL 407365, 2005 U.S. App. LEXIS
3015(1st Cir. Feb. 22, 2005).

11
sentence. 18 U.S.C. § 3742(e)

The Court’s decision in Booker/Fanfan substantially altered

the sentencing regime under the Guidelines. In Justice Stevens’

Substantive Opinion the Court ruled that

Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.

125 S.Ct. at 756. The Court reasoned that this ruling was required

for “enforcement of the Sixth Amendment’s guarantee of a jury

trial.” Id. at 752. The Court explained that before the Guidelines

were enacted, the sentencing judge had broad discretion to select

a sentence anywhere within the range between the statutory minimum

and maximum sentence provided by Congress. This system of

sentencing was significantly modified by the SRA, a regime in which

a legislature or a commission delegated by the legislature

specifies either specific sentences or a narrow range of sentences

subject to limited exceptions.

It was the mandatory aspect of this sentencing regime that the

Court concluded violated the Sixth Amendment’s requirement of a

jury trial.

Indeed everyone agrees that the constitutional issues
presented by these cases would have been avoided entirely
if Congress had omitted from the SRA the provisions that
make the Guidelines binding on district judges . . . For
when a trial judge exercises his discretion to select a
specific sentence within a defined range, the defendant
has no right to a jury determination of the facts that
the judge deems relevant.

12
Id. at 750(internal citations omitted). In Booker, the Court

followed its rationale in Blakely4 and concluded that when the

sentencing judge bound by mandatory Guidelines increased the

sentencing range under the Guidelines based on facts not found by

the jury or admitted by the defendant, the sentence violated

defendant Booker’s Sixth Amendment right to a jury trial.5

In Justice Breyer’s Remedy Opinion the Court ruled that

implementation of the Substantive Opinion required that two

provisions of the SRA be “severed and excised.” 125 S.Ct. at 764.

These deleted provisions are subsections 3553(b)(1) which makes the

use of the Guidelines mandatory and § 3742(e) which sets forth

standards of review on appeal.

Thus under the Remedy Opinion, the excision of subsection

3553(b)(1) converts the Guidelines from a mandatory regime to a

discretionary regime. The Remedy Opinion in Booker makes it

unmistakably clear, however, that the SRA, with the exception of

the excised provisions, remains intact. The Court instructed that

4
In Blakely, the Supreme Court held that a sentence imposed under
the state of Washington’s mandatory Guideline system based on facts not
found by the jury or admitted by the defendant violated the defendant’s
Sixth Amendment right to trial by jury. Blakely v. Washington, 124 S.
Ct. 2531, 2534-38, 159 L. Ed. 2d 403, 2004 U.S. LEXIS 4573 (2004).
5
As to defendant Fanfan, the sentencing judge increased the
Guideline range from 63-78 months to 188-235 months based on the judge’s
finding of relevant conduct which required enhancement of the sentence
under the Guidelines. However, the sentencing judge concluded that
Blakely precluded his use of the mandatory Guidelines to enhance the
sentencing range based on judge-found facts as opposed to facts
necessary to the verdict. The sentencing judge therefore imposed a
sentence of 78 months, which was within the unenhanced Guideline range.
Booker, 125 S.Ct. at 747.

13
“the remainder of the act functions independently”. Id. at 764.

The Court further explained that Ҥ 3553(a) remains in effect, and

sets forth numerous factors that guide sentencing. Those factors

in turn will guide appellate courts, as they have in the past, in

determining whether a sentence is unreasonable.” Id. at 766. The

Supreme Court, having excised the mandatory provisions of the SRA,

then replaced the appellate review provisions applicable to a

mandatory system with “a practical standard of review already

familiar to appellate courts: review for ‘unreasonableness’”. Id.

at 765.

C.

Even in the discretionary sentencing system established by

Booker/Fanfan, a sentencing court must still carefully consider

the detailed statutory scheme created by the SRA and the

Guidelines, which are designed to guide the judge toward a fair

sentence while avoiding serious sentence disparity. Although

Booker excised the mandatory duty to apply the Guidelines, the

sentencing court remains under a duty pursuant to § 3553(a) to

“consider” numerous factors including the following:

(4) the kinds of sentence and the sentencing range
established for–
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines–
(I) issued by the Sentencing
Commission . . . .
(5) any pertinent policy statement–
(A) issued by the Sentencing Commission . . . .

18 U.S.C. § 3553(a)(4), (5).

14
 This duty to “consider” the Guidelines will ordinarily require

the sentencing judge to determine the applicable Guidelines range

even though the judge is not required to sentence within that

range. The Guideline range should be determined in the same manner

as before Booker/Fanfan. Relatedly, Booker contemplates that, with

the mandatory use of the Guidelines excised, the Sixth Amendment

will not impede a sentencing judge from finding all facts relevant

to sentencing. 125 S.Ct. at 750, 764. The sentencing judge is

entitled to find by a preponderance of the evidence all the facts

relevant to the determination of a Guideline sentencing range and

all facts relevant to the determination of a non-Guidelines

sentence.6

If the sentencing judge exercises her discretion to impose a

sentence within a properly calculated Guideline range, in our

reasonableness review we will infer that the judge has considered

all the factors for a fair sentence set forth in the Guidelines.

Given the deference due the sentencing judge’s discretion under the

Booker/Fanfan regime, it will be rare for a reviewing court to say

such a sentence is “unreasonable.”

When the judge exercises her discretion to impose a sentence

within the Guideline range and states for the record that she is

doing so, little explanation is required. However, when the judge

6
Under U.S.S.G. § 6A1.3(b)(2004), which remains in effect, the
district court is required to “resolve disputed sentencing factors . .
. in accordance with Rule 32(i), Fed.R.Crim.P.” The Commentary to this
Guideline provides for use of the preponderance of the evidence
standard.

15
elects to give a non-Guideline sentence,7 she should carefully

articulate the reasons she concludes that the sentence she has

selected is appropriate for that defendant. These reasons should

be fact specific and include, for example, aggravating or

mitigating circumstances relating to personal characteristics of

the defendant, his offense conduct, his criminal history, relevant

conduct or other facts specific to the case at hand which led the

court to conclude that the sentence imposed was fair and

reasonable. Such reasons are essential to permit this court to

review the sentence for reasonableness as directed by Booker.8

D.

As indicated above, Booker directs us to review the ultimate

sentence for “reasonableness”. The Remedy Opinion in Booker places

the primary sentencing obligation squarely on the district court.

If the sentencing judge follows the principles set forth above,

commits no legal error in the procedure followed in arriving at the

sentence, and gives appropriate reasons for her sentence, we will

7
We use the term “non-Guideline” sentence to distinguish it from a
Guidelines sentence which includes a sentence that has been adjusted by
applying a “departure” as allowed by the Guidelines.
8
This requirement that the district court assign reasons for its
sentence is consistent with § 3553(c) which Booker/Fanfan left intact:
“Statement of Reasons for Imposing a Sentence. The court at the time
of sentencing, shall state in open court the reasons for its imposition
of the particular sentence and if the sentence . .(2) . . . is outside
the [Guideline] range, described in subsection (a)(4), the specific
reason for the imposition of a sentence different from that described,
which reasons must also be stated with specificity in the written order
of judgment and commitment . . .”

16
give great deference to that sentence.

E.

We now turn to Mares’ claim of Booker error. He argues that

he was deprived of his Sixth Amendment right to a jury trial

because the sentencing judge enhanced his sentence under a

mandatory Guidelines system based on facts found by the judge that

were neither admitted by him nor found by the jury. Mares,

however, did not object on this basis in the district court and our

review is only for plain error.9 U.S. v. Cotton, 535 U.S. 625,

631-32 (2002); U.S. v. Johnson, 520 U.S. 461 (1997); United States

v. Rodriguez, 2005 U.S. App. LEXIS 1832, 16-17 (11th Cir. 2005).

Our conclusion finds direct support from the Remedy Opinion in

Booker itself where the Court stated:

Nor do we believe that every appeal will lead to a new
sentencing hearing. That is because we expect reviewing
courts to apply ordinary prudential doctrines,
determining, for example, whether the issue was raised
below and whether it fails the “plain error” test.

9
Although the defendant in Booker did not raise the Sixth Amendment
issue in the district court, on appeal the government did not urge that
the error was not preserved and the court of appeals considered the
issue as though it had been raised. United States v. Booker, 375 F.3d
508, 515 (7th Cir. 2004). The Supreme Court did not disturb the standard
of review used by the Seventh Circuit and remanded the case for re-
sentencing. Booker, 125 S.Ct. at 769. In Fanfan the government objected
to the district court’s refusal to apply the enhancement and therefore
preserved its argument on appeal that the court erred in refusing to
apply the enhancement based on judge-found facts. The court remanded
the case, giving both parties the option to seek re-sentencing. Id.
Thus, if either the Sixth Amendment issue presented in Booker or the
issue presented in Fanfan is preserved in the district court by an
objection, we will ordinarily vacate the sentence and remand, unless we
can say the error is harmless under Rule 52(a) of the Federal Rules of
Criminal Procedure.

17
 Booker, 125 S.Ct. at 769.

Federal Rule of Criminal Procedure 52(b) provides:

Plain Error. A plain error that affects substantial
rights may be considered even though it was not brought
to the court’s attention.

Under this rule federal appellate courts have “a limited power to

correct errors that were forfeited because [they were] not timely

raised in the district court.” United States v. Olano, 507 U.S.

725, 731 (1993). An appellate court may not correct an error the

defendant failed to raise in the district court unless there is

“(1) error, (2)that is plain, and (3) that affects substantial

rights.” Cotton, 535 U.S. at 631. “If all three conditions are

met an appellate court may then exercise its discretion to notice

a forfeited error but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

Id.

The first prong of the plain error test is satisfied in this

case. Under the mandatory Guideline system in place at the time of

sentencing, Mares’ sentence was enhanced based on findings made by

the judge that went beyond the facts admitted by the defendant or

found by the jury. The jury found that Mares, a felon, possessed

ammunition. The judge enhanced the sentence based on his finding

that Mares was involved in a felony when he committed the offense.

Mares has therefore established Booker error.

Since Booker, the error is also plain. For these purposes,

“plain” is synonymous with “clear” or “obvious”. Olano, 507 U.S.

18
at 734. Johnson v. United States teaches that an error is plain

even though an objection at trial was not warranted under existing

law, but a superseding decision before appeal reverses that well

settled law. 520 U.S. 461, 468 (1997). It is enough that the law

was settled at the time of appellate consideration to make the

error “plain”. Id.

The third prong, which requires that an error affect

substantial rights, requires more detailed consideration. The

standard for determining whether an error affects substantial

rights is not in dispute. It requires a showing that the error

“must have affected the outcome of the district court proceedings.”

Olano, 507 U.S. at 734. To meet this standard the proponent of the

error must demonstrate a probability “sufficient to undermine

confidence in the outcome.” U.S. v. Dominguez Benitez, 159 L. Ed.

2d 157, 124 S. Ct. 2333, 2340 (2004). Also the Supreme Court has

made it clear that the defendant rather than the government bears

the burden of persuasion with respect to prejudice. Olano, 507

U.S. at 734. The Supreme Court has explained that the defendant’s

burden of establishing prejudice “should not be too easy.”

Dominguez Benitez, 124 S.Ct. at 2340. Otherwise, the prejudice

standard would not serve its purpose of “enforc[ing] the policies

that underpin Rule 52(b) generally, to encourage timely objections

and reduce wasteful reversals by demanding strenuous exertion to

get relief for unpreserved error.” Id.

As Judge Carnes explains in his careful opinion for the

19
Eleventh Circuit in Rodriguez, the Supreme Court has faithfully

enforced this burden of proof and requires

the defendant to show that the error actually did make
a difference: if it is equally plausible that the error
worked in favor of the defense, the defendant loses; if
the effect of the error is uncertain so that we do not
know which, if either, side it helped the defendant
loses.

Rodriguez, ___ F.3d ___, 2005 U.S. App. LEXIS 1832, at 24 (11th

Cir. 2005). We agree with the Eleventh Circuit’s reading of the

Supreme Court cases.

We also agree with the Eleventh Circuit that the district

court’s clear or obvious error in this case (as in Rodriguez) was

in using extra verdict enhancements to compute the defendant’s

sentence in a mandatory Guideline system. In other words, the

error is the imposition of a sentence, which was enhanced by using

judge found facts, not admitted by the defendant or found by the

jury, in a mandatory Guideline system.

We now turn to an application of the principles set forth

above to answer the third prong of the plain error test in Mares’

case. Since the error was using extra verdict enhancements to

reach a sentence under Guidelines that bind the judge, the

pertinent question is whether Mares demonstrated that the

sentencing judge - sentencing under an advisory scheme rather than

a mandatory one - would have reached a significantly different

result.

Based on the record before us, we reach the same conclusion

20
that Judge Carnes did in answering this question in Rodriguez. We

do not know what the trial judge would have done had the Guidelines

been advisory. Except for the fact that the sentencing judge

imposed the statutory maximum sentence of 120 months(when bottom of

the Guideline range was 110 months), there is no indication in the

record from the sentencing judge’s remarks or otherwise that gives

us any clue as to whether she would have reached a different

conclusion. Under these circumstances the defendant cannot carry

his burden of demonstrating that the result would have likely been

different had the judge been sentencing under the Booker advisory

regime rather than the pre-Booker mandatory regime. Because the

defendant cannot carry the burden of proof he cannot satisfy the

third prong of the plain error test.

We recognize that not all the circuits agree with the Eleventh

Circuit approach. Some circuits remand all cases for re-sentencing

regardless of whether the Booker error was preserved in the trial

court.10 The First Circuit follows an approach similar to the

Eleventh Circuit and considers remand on a record specific case by

case basis.11

The Second Circuit in its well-written opinion in Crosby

10
See for example - United States v. Hughes, 396 F. 3d 374 (4th
Cir. Jan 24, 2005); United States v. Oliver, ___ F. 3d ____, 2005 WL
233779, 2005 U.S. App. LEXIS 1623 (6 th Cir. Feb. 2, 2005) and United
States v. Ameline, ___ F. 3d ___, 2005 WL 350811, 2005 U.S. App. LEXIS
2032, amended at 2005 U. S. App. LEXIS 2178 (9th Cir. Feb. 10, 2005).
11
United States v. Antonakopoulos, ___ F. 3d ___, 2005 WL 407365,
2005 U.S. App. LEXIS 3015 (1st Cir. Feb. 22, 2005).

21
adopts another, slightly different approach. The Crosby court

sought assistance from the district court in answering the third

prong of the plain error test. It remanded the case to the

district court to answer the question of whether it would have

imposed a materially different sentence if the judge had been

sentencing under the Booker/Fanfan advisory regime. If the

district court answered this question in the affirmative, then the

district court was authorized to re-sentence the defendant. This

approach has some practical appeal because the remand allows the

sentencing judge to give a definitive answer to the question of

whether she would have given a different sentence had the

Guidelines been advisory. But, we find no support for this

approach in the Supreme Court plain error cases. Those cases place

the obligation on the appellate courts - rather than the district

courts - to determine the third prong of the plain error test. As

the Eleventh Circuit observed, that approach also has the potential

of producing many needless remands and appeals from those remands.

We believe the Supreme Court sought to avoid these extra steps in

the judicial process by requiring appellate courts to answer all

prongs of the plain error test. This conclusion is consistent with

the Remedy Opinion’s admonition to reviewing courts to apply

ordinary prudential doctrines such as plain error.

Accordingly, based on our conclusion that Mares failed to

establish that his substantial rights were affected by the district

court’s error in sentencing, we find no plain error and affirm his

22
sentence.

AFFIRMED.

23