United States v. Smith

United States Court of Appeals
Fifth Circuit
F I L E D
May 31, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-51205
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES PHILLIP SMITH,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
m 4:03-CR-165-ALL-H
______________________________

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2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
This court affirmed Charles Smith’s convic-
tion and sentence. United States v. Smith, 110
Fed. Appx. 380 (5th Cir. 2004) (per curiam).
The Supreme Court vacated and remanded for
further consideration in light of United States
v. Booker, 125 S. Ct. 738 (2005). Smith v.
United States, 125 S. Ct. 1091 (2005). We re-
quested and received supplemental letter briefs
addressing the impact of Booker.
Smith claims there is error under Booker
because his sentencing guideline range was in-
creased by attributing to him the sale of 340.2
grams of cocaine; he contends he was only
bragging of such a sale and that he never ac-
tually sold such a quantity. He contends this is
Booker error because the fact of the sale was
found by the district court rather than being
admitted to by Smith or found by a jury.
Although Smith did object to the court’s
inclusion of the 340.2 grams, 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. Smith and the
government correctly agree the plain error
standard of review applies because Smith 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 government acknowl-
edges that there is plain error, so the first two
prongs are satisfied.
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
United States v. Olano, 507 U.S. 725, 734
(1993)). To show that his substantial rights
are affected, Smith 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 oth-
er words, “the pertinent question 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.
Smith has presented nothing to satisfy that
burden. Accordingly, the judgments of con-
viction and sentence are 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 cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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