United States v. Gilford

United States Court of Appeals
Fifth Circuit
F I L E D
June 2, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-41422
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
QUINCY V. GILFORD, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m C:03-CR-81-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and SMITH,
Circuit Judges.
PER CURIAM:*
This court affirmed Quincy Gilford, Jr.’s,
conviction and sentence. United States v. Gil-
ford, 95 Fed. Appx. 549 (5th Cir. 2004) (per
curiam). The Supreme Court vacated and re-
manded for further consideration in light of
United States v. Booker, 125 S. Ct. 738
(2005). Gilford v. United States, 125 S. Ct.
1011 (2005). We requested and received sup-
plemental letter briefs addressing the impact of
Booker.
Gilford claims there is error under Booker
because the district court, rather than a jury,
made the finding that he possessed a firearm in
connection with the felony offense of pos-
session of crack cocaine, which finding re-
sulted in a four-level enhancement under
U.S.S.G. § 2K2.1(b)(5). At sentencing, Gil-
ford unsuccessfully contended that he pos-
sessed the weapon to commit suicide and that
the cocaine was for personal use only. In his
petition for writ of certiorari, Gilford argued
for the first time that the finding by a judge,
rather than by a jury or based on his own ad-
missions, violated Blakely v. Washington, 124
S. Ct. 2531 (2004), on which Booker largely
relied.
In considering a case that has been remand-
ed for further review in light of Booker, and
“absent extraordinary circumstances, we will
not consider . . . Booker-related arguments . . .
raised for the first time in a petition for [writ
of] certiorari.” United States v. Taylor, No.
03-10167, 2005 U.S. App. LEXIS 8701, at *3
(5th Cir. May 17, 2005) (per curiam). As we
discuss below, there is no inequity here that
would make this case “extraordinary.”
“Because [the defendant] did not raise his
Booker-related arguments in the district court,
had he raised these challenges in this court
before the decision issued on his direct appeal,
we would have reviewed them for plain error.”
Id. at *3-*4 (citation omitted). For any find-
ings made by the judge in violation of Booker,
it is undisputed that, as we have said, Gilford
did not raise a Sixth Amendment objection or
complain that the facts at issue must be de-
cided by a jury if not admitted to by the defen-
dant. So, the plain error standard of review
applies because Gilford did not preserve a
Sixth Amendment 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 er-
ror 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 first two prongs are
satisfied: There is plain error, because the
four-level enhancement was made on the basis
of judge-made factfinding.
With regard to the third prong, under Mar-
es, “the defendant rather than the government
bears the burden of persuasion with respect to
prejudice.” Mares, 402 F.3d at 521 (citing
* 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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United States v. Olano, 507 U.S. 725, 734
(1993)). To show that his substantial rights
are affected, Gilford must “point[] to . . . evi-
dence in the record suggesting that the district
court would have imposed a lesser sentence
under an advisory guidelines system.” Taylor,
2005 U.S. App. LEXIS 8701, at *4 (citations
omitted). In other words, “the pertinent ques-
tion is whether [the defendant] demonstrated
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.
Gilford has presented nothing to satisfy that
burden. The district court sentenced at the top
end of the guideline range (57 months) and an-
nounced that it was even considering an up-
ward departure in the criminal history category
from III to IV. This shows that the court was
not influenced by any factual findings that may
have affected the calculation of the range.
Finally, Gilford contends that no showing
of prejudice or detriment to his substantial
rights is required, because Booker error “is
clearly a structural error because it affected the
entire framework within which Mr. Gilford’s
sentencing proceeded.” 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) (unpublished). “[W]e reject [the]
argument that Booker error is structural and
insusceptible to harmless error analysis, and
that Booker error should be presumed preju-
dicial, 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) (unpublished).
The judgment of conviction and sentence is
AFFIRMED.

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