United States v. Tubbs

United States Court of Appeals
Fifth Circuit
F I L E D
June 3, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-51163
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL EDWARD TUBBS,
ALSO KNOWN AS MICHAEL TUBBS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m W:03-CR-69-1
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Michael
Tubbs. United States v. Tubbs, 96 Fed. Appx.
257 (5t h Cir. 2004) (per curiam). The Su-
preme Court vacated and remanded for further
consideration in light of United States v. Book-
er, 125 S. Ct. 738 (2005). Tubbs v. United
States, 125 S. Ct. 1054 (2005). We requested
and received supplemental letter briefs ad-
dressing the impact of Booker.
Tubbs claims there is error under Booker
because the district court, rather than a jury,
made a finding regarding the quantity of drugs
attributable to him. Although Tubbs did object
to the court’s inclusion of the so-called
“bones” in the drug quantity, he did not raise
a Sixth Amendment objection or complain that
the quantity must be decided by a jury if not
admitted to by the defendant.
The government correctly contends the
plain error standard of review should apply be-
cause Tubbs did not preserve a Sixth Amend-
ment error. See United States v. Mares, 402
F.3d 511, 520 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517).
“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.’” Id.
(quoting United States v. Cotton, 535 U.S.
625, 631 (2002)).
The government seems to acknowledge that
there is plain error, so the first two prongs are
satisfied. To show that his substantial rights
are affected, Tubbs must “point[] to . . . evi-
dence in the record suggesting that the district
court would have imposed a lesser sentence
under an advisory guidelines system.” United
States v. Taylor, No. 03-10167, 2005 U.S.
App. LEXIS 8701, at *4 (5th Cir. May 17,
2005) (per curiam) (citations omitted).
In his supplemental brief, Tubbs “admits
that there is nothing on this record that indi-
cates that the sentencing judge . . . was dissat-
isfied about the application of the Guidelines in
this particular case.” Tubbs contends, how-
ever, that “there is evidence of his dissatisfac-
tion with the entire scheme overall,” as al-
legedly shown by the fact that the judge was
“one of the first District Judges in the Nation
to declare the sentencing Guidelines unconsti-
tutional in the wake of Blakely.” This is an
inadequate showing “that the sentencing
judgeSSsentencing under an advisory scheme
rather than a mandatory oneSSwould have
reached a significantly different result.”
Mares, 402 F.3d at 521.
The judgment of sentence is AFFIRMED.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined 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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