United States v. Melton

* Pursuant to 5TH CIR. R. 47.5, the court has determined 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 22, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11355
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY FRANKLIN MELTON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-101-ALL-L
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Danny Franklin Melton appeals his sentence following his
guilty-plea conviction of theft or receipt of stolen mail matter.
Melton argues that his three-year term of supervised release
should be vacated because, now that the Sentencing Guidelines are
advisory rather than mandatory under United States v. Booker, 125
S. Ct. 738 (2005), the district court was not required to impose
supervised release. Because Melton did not raise the issue of
his supervised-release term in the district court, review is

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No. 04-11355
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limited to plain error. See United States v. Vonn, 535 U.S. 55,
59 (2002). Melton must show: (1) an error; (2) that is clear or
plain; (3) that affected his substantial rights; and (4) that
seriously affected the fairness, integrity, or public reputation
of his judicial proceedings. See United States v. Olano, 507
U.S. 725, 732-35 (1993).
The district court erred in imposing Melton’s term of
supervised release under the mandatory Sentencing Guidelines
scheme, and this error was obvious after Booker. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005).
However, Melton has not shown that the error affected his
substantial rights as he has not shown that the record
demonstrates that the district court judge would have imposed a
different or lesser supervised-release term under a Booker
advisory regime. See id. at 733-34. Therefore, he has not met
the requirements to show plain error. The district court’s
judgment is AFFIRMED.

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