Conference Calendar UNITED STATES OF AMERICA v. Jed Stewart Lineberry

*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this opinion should not be published and is not precedent except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.
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United States Court of Appeals
Fifth Circuit
F I L E D
November 16, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41053
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JED STEWART LINEBERRY,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Appellant
Lineberry’s conviction and sentence. See United States v.
Lineberry, No. 03-41053, 93 Fed. Appx. 632 (5th Cir. 2004) (per
curiam) (unpublished). Following our judgment, Lineberry filed a
petition for certiorari. The Supreme Court granted Lineberry’s

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2 There is no indication that the district court, if
given the opportunity to treat the guidelines as advisory only,
would have imposed a lesser sentence.
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petition for certiorari, vacated our judgment, and remanded the
case to this court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). We now reconsider the
matter in light of Booker and decide to reinstate our previous
judgment affirming Lineberry’s conviction and sentence.
Lineberry raised a Booker-related challenge to his sentence
for the first time on direct appeal. Because Appellant made no
Booker objection in the district court, however, Appellant’s claim
must fail under the plain-error test discussed in United States v.
Mares, 402 F.3d 511, 520-22 (5th Cir. 2005).2
Lineberry also argues that application of Justice Breyer’s
remedial opinion in Booker would strip him of his constitutional
protections against ex post facto laws. He explains that Apprendi
gave him the right to a jury trial on all facts essential to his
sentence and Justice Breyer’s remedial opinion in Booker stripped
that right away. In United States v. Scroggins, 411 F.3d 572, 575-
76 (5th Cir. 2005) we rejected that argument and held that Booker
required us to apply both Justice Stevens’ merits opinion and
Justice Breyer’s remedial opinion in Booker to all cases such as
this one on direct review.
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Lineberry’s

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conviction and sentence.

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