United States v. Guevara

United States Court of Appeals
Fifth Circuit
F I L E D
May 2, 2005
Charles R. Fulbruge III
Clerk
REVISED MAY 16, 2005
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-11299
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANK PACO GUEVARA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before HIGGINBOTHAM, SMITH, and
BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Frank Guevara challenges his conviction
under 18 U.S.C. § 2332a of threatening to use
a weapon of mass destruction (“WMD”). He
also appeals his classification as a career of-
fender under the sentencing guidelines. Fi-
nally, he challenges his sentence in light of
Blakely v. Washington, 124 S. Ct. 2531
(2004), and United States v. Booker, 125 S.

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2
Ct. 738 (2005).1 Finding no reversible error,
we affirm.
I.
Guevara committed what is called an “an-
thrax hoax.” In August 2002 he wrote and
mailed a letter to United States District Judge
Mary Lou Robinson. An employee at the
court’s mail depository retrieved the letter and,
recognizing that it was from an inmate, opened
the envelope, which contained a white, pow-
dery substance that got onto the employee’s
fingers. The letter stated:
Mary Lou Robinson,
I am sick and tired of your games[.] All
[A]mericans will die as well as you. You
have been now been [sic] exposure [sic] to
anthrax.
Mohammed Abdullah.
The substance in the envelope turned out to be
harmless hair gel and powdered cleanser.
The incident effectively closed the federal
building for a period of time. Local police
with hazardous materials training, bomb squad
personnel, and the FBI responded. The build-
ing’s air conditioning had to be turned off.
Judge Robinson (the target of the letter) shut
down her courtroom. The federal building
housed numerous federal agencies that were
required to close for the rest of the day.
The government charged Guevara with
(1) threatening to use a WMD in violation of
18 U.S.C. § 2332a and (2) mailing a threaten-
ing communication by way of the United
States Postal Service in violation of 18 U.S.C.
§ 876. During trial, Guevara moved for judg-
ment of acquittal at the close of the govern-
ment’s case and at the close of all of the evi-
dence. His motions were denied, and the jury
convicted him on both counts.
The presentence report (“PSR”) classified
Guevara as a career offender under the guide-
lines because he was over eighteen years of
age at the time of the crime, he had at least
two convictions for crimes of violence, and the
probation officer characterized the § 2332a
conviction as a crime of violence. Guevara
objected to the career offender classification,
arguing that the instant WMD conviction was
not a crime of violence. The district court
overruled his objection and, based on this
classification, imposed a sentence of life im-
prisonment.2
II.
A.
1.
We review the denial of a motion for judg-
ment of acquittal de novo. See United States
v. DeLeon, 170 F.3d 494, 496 (5th Cir. 1999).
When reviewing the sufficiency of the evi-
dence, we consider “‘whether a reasonable tri-
er of fact could have found that the evidence
established the essential elements of the crime
beyond a reasonable doubt.’” United States v.
Cathey, 259 F.3d 365, 368 (5th Cir. 2001)
(quoting United States v. Ortega Reyna, 148
F.3d 540, 543 (5th Cir. 1998)).
1 The challenge pursuant to Booker is made in
a supplemental letter brief filed at this court’s re-
quest after Booker was announced.
2 Guevara does not challenge his conviction un-
der § 876. Given the statutory maximum pun-
ishment of life in prison under § 2332a, Guevara’s
offense level was raised from 27 to 37, and his
criminal history category was raised from V to VI.
These adjustments dictated a sentencing range of
360 months to life.

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3
§ 2332a provides in relevant part:
A person who, without lawful authority,
uses, threatens, or attempts or conspires to
use, a weapon of mass destruction . . .
(2) against any person within the United
States, and the results of such use affect
interstate or foreign commerce or, in the
case of a threat, attempt, or conspiracy,
would have affected interstate or foreign
commerce . . . shall be imprisoned for any
term of years or for life . . . .
When construing a criminal statute, we are
bound by the plain and unambiguous meaning
of its language. See United States v. Kay, 359
F.3d 738, 742 (5th Cir. 2004). We look first
to the words’ ordinary and natural meaning
and the overall policies and objectives of the
statute. See id. We must seek to give every
word in the statute some operative effect. See
id.
2.
Guevara contends that to secure a convic-
tion under § 2332a, the government must es-
tablish both that he made a “threat” and that it
encompassed t he “use” of a weapon of mass
destruction. Guevara makes arguments that
would, in the absence of preclusive authority,
make closer the issue of whether “to threaten
to use” requires an expression of intent to act
in the future. There are plain-language and
legislative history arguments that, in a vacuum,
might lend credence to Guevara’s interpreta-
tion.3
These arguments are nonetheless unavailing
in light of United States v. Reynolds, 381 F.3d
404, 406 (5th Cir. 2004), cert. denied, 125 S.
Ct. 922 (2005), in which we construed
§ 2332a to contain no requirement of future
action:
We have found no credible support for a
definition of “threat” that requires reference
to a future act. We therefore conclude that
the proper definition of “threaten” in
§ 2332a is that adopted by this court in
Myers: a communication that has a reason-
able tendency to create apprehension that
[the] originator of the communication will
act as represented.
In Reynolds the defendant, who was involved
in a dispute with a mortgage company, told the
company’s telephone operator that he had just
dumped anthrax into the air conditioning
system. Id. at 405. Company security person-
nel ultimately deemed the threat to be non-
credible and decided not to evacuate the build-
ing. Reynolds was nonetheless convicted un-
der § 2332a for threatening to use a WMD.
On appeal Reynolds argued that he had not
“threatened” to use a WMD because the state-
ment in question conveyed only the completion
of a past act. Citing United States v. Myers,
104 F.3d 76, 79 (5th Cir. 1997), we held that
§ 2332a’s threat language does not require ref-
erence to a future act.4 There is no reason
3 Guevara points to legislative materials that
suggest Congress perceived anthrax hoaxes to re-
main uncovered by existing laws. Those materials
include (1) the fact that Congress recently enacted
a law to punish them and (2) the fact that, except in
very limited circumstances, the maximum pun-
(continued...)
3(...continued)
ishment in that legislation is five years in prison.
4 Guevara makes much of the fact that the
statute says “to use,” and he reads the “to use”
language as requiring future action. Aside from
the fact that Reynolds forecloses this interpretation,
we remain skeptical of any earnest attempt to read
(continued...)

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4
able way to distinguish that ruling here.
Once we have interpreted § 2332a to have
no future-action requirement, the evidentiary
question is an easy one. Guevara claimed to
have mailed anthrax, and the record is more
than sufficient to sustain the conviction under
our interpretation of the statutory language.
B.
Although we ordinarily review jury instruc-
tions for abuse of discretion, we review an in-
struction de novo where there is the possibility
that the jury instruction misstated an element
of the crime, because that is an issue of statu-
tory construction. See United States v. Ho,
311 F.3d 589, 605 (5th Cir. 2002). Guevara
objected to the jury instruction indicating that
the government did not have to prove that he
actually intended or was able to carry out the
threat. The district court instructed the jury as
follows:
A threat is a serious statement expressing
an intention to do an act which under the
circumstances would cause apprehension in
a reasonable person, as distinguished from
idle or careless talk, exaggeration, or some-
thing said in a joking manner. It is not
necessary to prove that the defendant actu-
ally intended or was able to carry out the
threat made.
We view this issue as redundant of that dis-
cussed in part II.A.2. If, as we have held both
here and in Reynolds, a person can violate
§ 2332a merely by making a statement about
completed action, and if, as we held in Rey-
nolds, that threat need not be credible, there is
no problem with the court’s instruction re-
garding intent or plausibility.
III.
Section 2332a requires the government to
show that the use of a WMD, as threatened,
would have affected interstate commerce. In
United States v. Wise, 221 F.3d 140, 152 (5th
Cir. 2000), we held that, in the case of a
§ 2332a threat, there need not be an actual or
substantial effect on commerce.
4(...continued)
too much into the “to use” language. To be sure,
§ 2332a is not a glittering example of statutory
craftsmanship. Again, it reads:
A person who, without lawful authority, uses,
threatens, or attempts to use, a weapon of mass
destruction . . . (2) against any person within
the United States, and the results of such use
affect interstate or foreign commerce or, in the
case of a threat, attempt, or conspiracy, would
have affected interstate or foreign commerce . .
. shall be imprisoned for any term of years or
for life . . . .
Guevara would distribute the phrase “to use” up-
str eam in the sentence, applying it to the word
“threaten,” to get to the requirement that Guevara
“threaten to use.” Such distributive mechanics,
however, would also require that “to use” be dis-
tributed upstream to the word “uses,” a grammati-
cal construction that leaves something to be de-
sired.
That construction, however, is probably super-
ior to the alternative, which is to decline to dis-
tribute “to use” upstream. This alternative con-
struction would leave the statute an unintelligible
law punishing any “person who, without lawful au-
thority . . . threatens . . . a weapon of mass de-
struction.” We are faced with the unenticing
choice, on the basis of the “to use” language, be-
tween a construction that reads “uses . . . to use”
and a construction that leaves the statute without a
direct object. We therefore decline to refocus in-
tensely on the “to use” language where Reynolds
would seem to foreclose the question in any event.
See Reynolds, 381 F.3d at 406 (explicitly con-
templating the phrase “threaten to use”).

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5
A.
The court erroneously instructed the jury
that, to convict Guevara under § 2332a, it had
to find that the WMD, if used as threatened,
would have substantially affected interstate
commerce; the statute requires only that the
threat, if carried out, would have some effect,
not necessarily a substantial one. The court
instructed that “commerce” meant the “flow of
goods, merchandise, money, or other property
between states.” The interstate commerce
element was stated properly in the indictment.
Guevara argues that because the instruc-
tions mistakenly stated, without government
objection, the degree of effect required on
commerce, the “substantially affected” lan-
guage became “law of the case,” and the gov-
ernment had to pro ve it beyond a reasonable
doubt. Although there is no binding precedent
in this circuit, there is persuasive authority that
guides our analysis.
In United States v. Zanghi, 189 F.3d 71,
79-80 (1st Cir. 1999), the court held that
where a misstated element is included in the
jury instruction, but not in the indictment, the
misstated element does not necessarily become
law of the case. Our court has held as much,
albeit in an unpublished opinion. See United
States v. Munoz-Hernandez, 94 Fed. Appx.
243, 245 (5th Cir. 2004) (unpublished), va-
cated on other grounds, 125 S. Ct. 999
(2005). We now adopt the First Circuit rule,
to the effect that the “substantially affected”
language does not become law of the case.5
Consistent with the foregoing authorities, the
jury instruction may not become law of the
case if both (1) it is patently erroneous and
(2) the issue is not misstated in the indictment.
B.
We review the interstate commerce element
determination for sufficiency of the evidence
by deciding whether, after viewing the evi-
dence in the light most favorable to the ver-
dict, any rational trier of fact could have found
the essential elements of the offense beyond a
reasonable doubt. See United States v. Dan-
iel, 957 F.2d 162, 164 (5th Cir. 1992). With-
out speculating unnecessarily as to the inter-
state commerce effects flowing from the suc-
cessful release of anthrax spores, we conclude
that Guevara’s threat actually affected inter-
state commerce. The federal building was shut
down for a day and a half; numerous federal
agencies, including the DEA, experienced de-
lay; and Judge Robinson’s court (which han-
dled diversity suits) was interrupted. These
circumstances are more than enough for us to
affirm on sufficiency of the evidence review.
IV.
A.
Guevara argues that his WMD conviction
was incorrectly classified as a “crime of vio-
lence” under U.S.S.G. § 4B1.1. Before Book-
er, we reviewed a district court’s interpreta-
tion and application of the sentencing guide-
lines de novo. See United States v. Charles,
301 F.3d 309, 312-13 (5th Cir. 2002) (en
banc). Because these are questions of law, the
same standard should control in the wake of
Booker. “[W]hen a district court has imposed
a sentence under the Guilelines, this court con-
tinues after Booker to review the district
court’s interpretation and application of the
Guidelines de novo.” United States v. Ville-
gas, 404 F.3d 355, 359 (5th Cir. 2005) (per
curiam).
5 Guevara also argues that the “substantially
affected” language is invited error. We are uncer-
tain precisely what to make of this argument. The
district court issued the jury instruction, and the
government merely failed to object. Moreover, the
government does not “complain” of the error.

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6
B.
The guidelines define a “crime of violence”
as any offense under federal or state law that is
punishable by imprisonment for more than one
year that
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is the burglary of a dwelling, arson, or
extortion, involves the use of explosives or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
U.S.S.G. § 4.B1.2(a). Because Guevara’s
conviction qualifies as a “crime of violence”
under § 4B1.2(a)(1), we express no opinion as
to whether it would qualify under § 4B1.2-
(a)(2).
Section 2332a contains, as an element, the
threatened use of a weapon of mass destruc-
tion. The jury was instructed, in relevant part,
that to convict, it must find that “[Guevara],
without lawful authority, knowingly and inten-
tionally threatened to use a weapon of mass
destruction” and that “the nature of the threat
was to use the weapon against a third person
within the United States.” In other words, the
jury instructions state precisely the require-
ments of the statute.
Given that we uphold the “threat” status of
Guevara’s anthrax hoax under Reynolds, the
only determination we need make is whether,
under the guidelines, WMD’s are instruments
of physical force within the meaning of
§ 4B1.2(a)(1); we have little problem conclud-
ing that they are. We need not look to the in-
dictment, the facts, or anything other than the
statute to determine whether § 2332a contains
an element that qualifies Guevara’s crime as a
crime of violence under the guidelines.
Other circuits have determined that mailing
a threatening communication under § 876
constitutes a crime of violence under § 4B1.2-
(a)(1). In United States v. Left Hand Bull,
901 F.2d 647, 649 (8th Cir. 1990), the court
reasoned that, because of § 876’s requirement
that the communication threaten to injure the
addressee or another third party, § 4B1.2(a)(1)
was satisfied.
Reaching the contrary conclusion, more-
over, would require us to say that the use of
WMD’s does not involve physical force. Gue-
vara addresses this argument in a single sen-
tence of his opening brief: “Here, none of the
offenses speak to the use of ‘force’ or even
threatened attempted force.” We reject that
illogical reasoning and conclude, categorically,
that the WMD’s at issue here involved physi-
cal force within the meaning of § 4B1.2(a)(1).6
V.
Guevara argues that, under Blakely, the dis-
trict court sentenced him unconstitutionally ac-
cording to facts not found by a jury and to
which he did not stipulate. The Court directly
addressed this issue in Booker.
Based solely on the facts adduced in the
jury findings, the maximum sentence the dis-
trict court could assess against Guevara was
seventy-eight months.7 Guevara asserts that
6 We decline to engage in the more complicated
analysis under § 4B1.2(a)(2), which under the
“otherwise clause” would require us to consider
risk posed by hypothetical conduct.
7 Guevara’s pre-adjustment maximum pursuant
to the guidelines is calculated using the base of-
fense level of 20 as found in the PSR. Coupled
(continued...)

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7
the court should not have increased the sen-
tence by deciding that he (1) committed a
crime of violence; (2) substantially disrupted
governmental functions; and (3) chose his
victim on account of her governmental status.
On the basis of those circumstances, the court
increased Guevara’s maximum available sen-
tence under the guidelines to life imprisonment
for the § 2332a violation; the court then pro-
ceeded to impose that maximum sentence.
In Booker, the defendant was charged with
possession with intent to distribute at least fifty
grams of crack. See Booker, 125 S. Ct. at
746. Based on facts the court found by a pre-
ponderance of the evidence at a post-trial sen-
tencing hearing, it imposed a sentence exceed-
ing that which it could have imposed on the
basis of the facts proven to the jury beyond a
reasonable doubt.8 See id.
The Court made several key holdings in
Booker. First, it found that mandatory sen-
tencing based on facts not found by the jury
violates the Sixth Amendment. See id. at 749-
50. Second, it severed and excised the provi-
sions that rendered the guidelines unconstitu-
tional, specifically those making them manda-
tory.9 See id. at 759-61. Finally, it instructed
lower courts to apply ordinary prudential doc-
trines in determining whether the imposed
sentence requires a vacatur and remand. See
id. at 769.
Based on these directives, (1) the district
court’s mandatory sentence based on certain
facts found exclusively in the sentencing pro-
ceeding violates the Sixth Amendment;
(2) Guevara failed to preserve the error ade-
quately, so his sentence is subject to plain er-
ror review; and (3) the error did not affect his
substantial rights as required under the plain
error standard. We therefore affirm the sen-
tence.
A.
There is no Sixth Amendment violation
with respect to post-trial consideration of ca-
reer offender status. According to U.S.S.G.
§ 4B1.1(a),
A defendant is a career offender if (1) the
defendant was at least eighteen years old at
the time the defendant committed the in-
stant offense of conviction; (2) the instant
offense of conviction is a felony that is ei-
ther a crime of violence or a controlled sub-
stance offense; and (3) the defendant has at
least two prior felony convictions of either
a crime of violence or a controlled sub-
stance offense.
7(...continued)
with a criminal history Category V, this offense
level yields a range of 63-78 months.
8 Having heard evidence that he had distributed
92.5 grams of crack, the jury found Booker guilty
of a statutory offense carrying a penalty of 10
years to life in prison. See Booker, 125 S. Ct. at
746. Based on his criminal history and the quan-
tity of drugs found by the jury, the guidelines stipu-
late a sentencing range of 210-262 months. See id.
In a post-conviction sentencing hearing the court
found, according to a preponderance of the evi-
dence, that Booker had possessed an additional 566
grams of crack and was guilty of obstructing
justice. See id. That additional factfinding yield-
ed, according to the guidelines, a sentence of 360
months to life in prison. See id. The court im-
posed a 30-year sentence, compared to d to the 21
years and 10 months that could have been meted on
the basis of facts proven to the jury beyond a
reasonable doubt. See id.
9 Specifically, the decision severs and excises
18 U.S.C. § 3553(b)(1) (Supp. 2004) and
§ 3742(e) (main ed. and Supp. 2004).

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8
The question Booker answered in the affirma-
tive was “[w]hether the Sixth Amendment is
violated by the imposition of an enhanced
sentence under the United States Sentencing
Guidelines based on the sentencing judge’s
determination of a fact (other than a prior
conviction) that was not found by the jury or
admitted by the defendant.” Booker, 125 S.
Ct. at 747 n.1 (emphasis added). Career of-
fender status is not “a sentencing judge’s de-
termination of a fact other than a prior convic-
tion.” Aside from Guevara’s age (a fact to
which he stipulated in his competency report),
the determinations made in the course of a
career offender classification are all questions
of law; in other words, they are precisely the
determinations the above-quoted italicized
language exempts.
Thus, Booker explicitly excepts from Sixth
Amendment analysis the third component of
the crime of violence determination, the fact of
two prior convictions.10 The remaining deter-
mination necessary to classify a defendant as a
career offender, then, is whether the current
conviction constitutes a “crime of violence.”
That determination is in turn made pursuant to
§ 4B1.2(a)-(b). Because Guevara’s career of-
fender status depends only on crime-of-vio-
lence (rather than controlled substance) con-
victions, we focus exclusively on § 4B1.2(a).
Section § 4B1.2(a)(1) instructs district
courts to treat the offense of conviction as a
crime of violence if it “has as an element the
use, attempted use, or threatened use of physi-
cal force against the person of another.” By
definition, then, a court cannot classify an of-
fense as a crime of violence if a jury has not
already found beyond a reasonable doubt the
element of the offense on which that determi-
nation is predicated.
Section 4B1.2(a)(2) instructs courts to con-
sider the instant offense a crime of violence if
it is “burglary of a dwelling, arson, or extor-
tion, involves use of explosives, or otherwise
involves conduct that presents a serious poten-
tial risk of physical injury to another.” Our
caselaw interpreting that provision has cate-
gorically forbidden courts from looking be-
yond the statute and the indictment in making
this decision.11 Therefore, as is the case with
§ 4B1.2(a)(1), under § 4B1.2(a)(2) the sen-
tencing court cannot base its crime-of-violence
determination on anything beyond what is
present in the statute or alleged in the indict-
ment, elements as to which, to convict, the
jury must have found evidence beyond a rea-
sonable doubt in any event. As a consequence,
the crime-of-violence determination is made
exclusively pursuant to facts found by a jury,
and Guevara’s classification as a career of-
fender is not in violation of the Sixth Amend-
ment under Booker.
B.
Guevara urges that two other judicially-
10 One might argue that whereas Booker speaks
in terms of the “fact” of prior convictions, the
guidelines career offender determination involves
the “character” of those convictions. To classify
a defendant as a career offender under the guide-
lines, a court must determine that he has two prior
felony convictions, both of which must be either (1)
crimes of violence or (2) controlled substance
convictions meeting certain specifications. Though
we express no opinion on the factual versus legal
character of finding the controlled substance
violations, characterizing an offense as a crime of
violence is a purely legal determination, as we will
explain.
11 See, e.g., United States v. Calderon-Pena,
383 F.3d 254 (5th Cir. 2004) (en banc), cert. de-
nied, 125 S. Ct. 932 (2005).

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9
found facts violated his Sixth Amendment
rights: the findings that he substantially dis-
rupted governmental functions and that he
chose his victim on account of her govern-
mental status. Guevara failed to raise this is-
sue at the sentencing hearing, and ultimately
did so only in a supplemental appellate brief
after the Court decided Blakely.
In United States v. Rios-Quintero, 204 F.3d
214 (5th Cir. 2000), we addressed what stan-
dard of review to apply where a party briefed
a claim on appeal but had not raised it in the
district court because the Supreme Court had
not yet issued the decision underlying the
claim itself.12 We concluded that the plain er-
ror standard of review was nonetheless appro-
priate for claims first raised on appeal where
the relevant Supreme Court case was decided
during the pendency of that appeal. Id. at 215.
We thus apply a plain error standard to Gueva-
ra’s Sixth Amendment claim.
Under plain error review, to correct an er-
ror not properly preserved, we must find
(1) error (2) that is plain and (3) affects sub-
stantial rights.13 “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, in-
tegrity, or public reput ation of judicial
proceedings.” United States v. Cotton, 535
U.S. 625, 631 (2002). See also United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005)
(reiterating that this is the applicable standard
in Booker cases where the error is not pre-
served), petition for cert. filed (U.S. Mar. 31,
2005) (No. 04-9517).
C.
1.
Under Booker, the Sixth Amendment was
violated when the district court mandatorily
adjusted Guevara’s sentence on the basis of
the remaining two questions of fact not found
by a jury beyond a reasonable doubt. With re-
spect to the first step in our plain error review,
therefore, there was error. See Mares, id. at
520-21.
With respect to the second step, we assess
whether an error is “plain” or “obvious” by
reference to the law as it exists at the time of
appellate consideration. See Cotton, 535 U.S.
at 631-32). Again, Booker left no doubt as to
the status of the error involved in mandatorily
sentencing defendants pursuant to judge-found
facts: Any case now on appeal, in which the
court made factual findings pursuant to the
guidelines, and where those findings were not
implicit in the verdict or admitted by the de-
fendant, involves a constitutional error that is
plain under Blakely and Booker. See Mares,
402 F.3d at 521.
2.
The pivotal issue in Guevara’s Sixth
Amendment claim is therefore whether the ob-
vious sentencing error affected his substantial
rights. To have done so, it must have affected
the outcome of the proceeding. Id. The de-
fendant bears the burden of showing a proba-
bility that the error undermines co nfidence in
the outcome. Id.
3.
The base offense level for violation of
§ 2332a(a)(2) is 20. See U.S.S.G. § 2M6.1.
Guevara’s total offense level was 27 after up-
ward adjustments for substantial disruption of
12 The Supreme Court case at the heart of the
tardy party’s claim in Rios-Quintero was Jones v.
United States, 526 U.S. 227 (1999).
13 See United States v. Olano, 507 U.S. 725,
732 (1993); United States v. Calverley, 37 U.S.
160, 162 (5th Cir. 1994) (en banc).

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10
public, governmental, or business functions or
services (+4), see id. § 2MG.1(b)(3)(i), and
because the victim was a government officer
or employee and the offense of conviction was
motivated by such status (+3), see id. § 3A1.2-
(a)(1)(A), (2).
According to § 4B1.1(b), the criminal his-
tory category of any career offender is VI. Al-
so according to § 4B1.1(b), any career of-
fender who is convicted of an offense with a
maximum sentence of life under the substan-
tive statute is assigned an offense level of 37.
Based on a criminal history category of VI and
a total offense level of 37, Guevara’s guideline
range is 360 months to life.
The rub is that the judge’s post-trial fact-
finding did not alter Guevara’s career offender
status, and if Guevara remains a career of-
fender convicted under § 2332a, he would be
in the same guideline range irrespective of
whether the court found additional facts by a
preponderance of the evidence. His career of-
fender status yields a criminal history category
of VI and a total offense level of 37 without
regard to whether a judge or jury found that he
(1) disrupted governmental functions and
(2) t argeted his victim on the basis of her
governmental status.
We summarize this analysis as follows:
Even if the guidelines were mandatory and
Guevara could be sentenced only according to
elements found by a jury beyond a reasonable
doubt, his guidelines range would remain un-
changed. As Booker instructs, however, the
guidelines are merely “advisory.” Because of
Guevara’s classification as a career offender,
the guidelines would “advise” the same sen-
tencing range irrespective of whether the ad-
justment circumstances existed.
Finally, because the district court sentenced
Guevara to the maximum allowable punish-
ment (life) under both the guidelines and
§ 2332a, and because the maximum sentence
the court can impose, even post-Booker,
remains limited to life by the terms of § 2332a,
there is no reason to believe that the sentenc-
ing court would sentence Guevara any differ-
ently merely because the guidelines are advi-
sory.
This analysis is reinforced by Mares, which
states that “the pertinent quest ion is whether
[the defendant] demonstrated that the sentenc-
ing judgeSSsentencing under an advisory
scheme rather than a mandatory oneSSwould
have reached a significantly different result.”
Mares, 402 F.3d at 521. “[T]he defendant
rather than the government bears the burden of
persuasion with respect to prejudice” in these
determinations. Id. Here, as in Mares,
[w]e do not know what the trial judge
would have done had the Guidelines been
advisory. Except for the fact that the sen-
tencing judge imposed the statutory maxi-
mum sentence . . ., there is no indication in
the record from the sentencing judge’s
remarks or otherwise that gives us any clue
as to whether [the judge] would have
reached a different conclusion.
Id. at 522. And again, as in Mares, “the de-
fendant cannot carry his burden of demonstrat-
ing that the result would have likely been dif-
ferent had the judge been sentencing under the
Booker advisory regime rather than the pre-
Booker mandatory regime [, so] the defendant
cannot satisfy the third prong of the plain error
test.” Id. We need not address Guevara’s ar-
guments regarding the other two enhance-
ments, because he points to nothing in the rec-
ord suggesting that they created a prejudicial
Booker error.

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11
The judgments of conviction and sentence
are AFFIRMED.

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