United States v. Jackson

United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30205
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH LEE JACKSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 03-CR-50078-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH and GARZA, Circuit Judges,
and VANCE,* District Judge.
Circuit Judges.
PER CURIAM:**
This court affirmed Joseph Jackson’s con-
viction. United States v. Jackson, 390 F.3d
393 (5th Cir. 2004). The Supreme Court va-
cated and remanded for further consideration
in light of United States v. Booker, 125 S. Ct.
738 (2005). Jackson v. United States, 125
S. Ct. 1683 (2005). We requested and re-
ceived supplemental letter briefs addressing the
impact of Booker.
Jackson did not raise a Sixth Amendment
issue in the district court but did so in a letter
brief filed in this appeal long before our opin-
ion issued. He raised the issue again in his
petition for writ of certiorari. In his supple-
mental brief addressing Booker, he acknowl-
edges that at his guilty plea hearing, he admit-
ted to possessing 1,486 grams of cocaine, a
figure that was used to calculate his sentence.
The district court then departed upwardly from
the range calculated in accordance with the
then-mandatory sentencing guidelines.
By virtue of his failure to object in the dis-
trict court, Jackson concedes that he is subject
to plain-error review. 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)).
Because Jackson admitted to the quantity
of drugs on which his sentence was based,
there is no Sixth Amendment violation. His
only remaining claim is that he nonetheless is
entitled to be sentenced under an advisory,
instead of mandatory, guideline regime.
“Technically, this is a “Fanfan error, not a
Booker error.” United States v. Martinez-
Lugo, 2005 U.S. App. LEXIS 10432, at * 5
(5th Cir. June 7, 2005) (per curiam) (referring
to Ducan Fanfan, the second defendant in the
consolidated opinion in Booker). See United
States v. Villegas, 404 F.3d 355, 364 (5th Cir.
2005) (per curiam) (discussing the difference
between Booker and Fanfan error).
The government concedes that although
there is no Booker error, there is Fanfan error.
The third prong of the plain-error test requires,
under Mares, that “the defendant rather than
the government bears the burden of persuasion
with respect to prejudice.” Mares, 402 F.3d at
521 (citing United States v. Olano, 507 U.S.
725, 734 (1993)). To show that his substantial
rights are affected, Jackson would have to
“point[] to . . . evidence in the record suggest-
ing 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 other words, “the pertinent ques-
tion is whether [the defendant] demonstrated
* District Judge of the Eastern District of Loui-
siana, sitting by designation.
** 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 cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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that the sentencing judgeSSsentencing under
an advisory scheme rather than a mandatory
oneSSwould have reached a significantly dif-
ferent result.” Mares, 402 F.3d at 521. To
meet this standard, the proponent of the error
must demonstrate a probability “sufficient to
undermine confidence in the outcome.” Unit-
ed States v. Dominguez Benitez, 542 U.S. 74,
__, 124 S. Ct. 2333, 2340 (2004).
In her supplemental brief, Jackson’s counsel
candidly admits that “the record does not
satisfy the Mares prejudice standard for plain
error review.” She suggests that Mares is
wrongly decided but acknowledges it as bind-
ing Fifth Circuit precedent. She proceeds,
however, to argue further that applying the
sentencing guidelines as mandatory is struc-
tural error that requires no showing of preju-
dice “because it affected the entire framework
within which sentencing proceeded [and]
should be deemed to have affected Jackson’s
substantial rights, in satisfaction of the third
prong of Olano’s plain error test.”
This contention has no merit, for we have
determined that Booker error is not structural
error. United States v. Muhammad, No. 03-
10137, 2005 U.S. App. LEXIS 9078, at *3
(5th Cir. May 18, 2005) (per curiam) (unpub-
lished). “[W]e reject [the] argument that
Booker error is structural and insusceptible to
harmless error analysis, and that Booker error
should be presumed prejudicial, as both claims
are in conflict with Mares.” United States v.
Malveaux, 2005 U.S. App. LEXIS 5960,
at * 4 n.9 (5th Cir. Apr. 11, 2005) (per
curiam). Neither Booker error nor Fanfan
error is structural. Martinez-Lugo, 2005 U.S.
App. LEXIS 10432, at *8.1
The judgment of conviction is AFFIRMED
for the reasons set forth in our initial opinion.
For the reasons herein explained, the judgment
of sentence is likewise AFFIRMED.
1 In his supplemental brief, Jackson makes the
(continued...)
1(...continued)
related argument that “[e]ven if the error is not
deemed structural, it should be considered as
among the class of errors that are ‘presumed pre-
judicial’” (citing, inter alia, United States v. Rey-
na, 358 F.3d 344, 351-52 (5th Cir.) (en banc),
cert. denied, 541 U.S. 1065 (2004)). As the gov-
ernment points out, Reyna addressed an entirely
different situation, and in any event, Jackson’s
argument is foreclosed by the statement in Booker
that mandates review under “ordinary prudential
doctrines” such as “the harmless error doctrine.”
Booker, 125 S. Ct. at 769.

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