United States v. Solleder

* 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this opinion should not be published and is not precedent except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
November 14, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40145
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN JASON SOLLEDER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-121-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of John Jason Solleder.
United States v. Solleder, 111 Fed. Appx. 738 (5th Cir. 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). We requested and have received supplemental
briefs addressing Booker’s impact.

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No. 04-40145
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Solleder asserts that the district court erred by sentencing
him based on facts to which he did not admit and that were not
found by a jury beyond a reasonable doubt and by sentencing him
pursuant to mandatory guidelines. He contends that the mandatory
application of the guidelines is a structural error and that
prejudice should be presumed. He also asserts that he can meet
the plain error standard because it is reasonably probable that
he would have received a different sentence under advisory
guidelines given that he cooperated by admitting his conduct and
that he was sentenced at the lowest level under the guidelines.
Because Solleder did not preserve his arguments before the
district court, plain error review applies. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, 2005 U.S.
LEXIS 6132 (U.S. Oct. 3, 2005). This court may correct forfeited
errors only when the appellant shows the following factors:
(1) there is an error, (2) that is clear or obvious, and (3) that
affects his substantial rights. United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United
States v. Olano, 507 U.S. 725, 731-37 (1993)).
The error identified in Booker is not the use of extra
verdict enhancements, but rather the use of such enhancements
under a mandatory guidelines system. See Mares, 402 F.3d at 521.
To establish that such an error affected an appellant’s
substantial rights, “the appellant must ordinarily point to
statements in the record by the sentencing judge demonstrating a

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No. 04-40145
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likelihood that the judge sentencing under an advisory scheme
rather than a mandatory one would have reached a significantly
different result.” See United States v. Pennell, 409 F.3d 240,
245 (5th Cir. 2005); Mares, 402 F.3d at 521.
Solleder has not made the requisite showing. This court has
rejected the argument that mandatory application of the
sentencing guidelines constitutes structural error or is
presumptively prejudicial. See United States v. Malveaux, 411
F.3d 558, 561 n.9 (5th Cir. 2005), cert. denied, 2005 U.S. LEXIS
6485 (U.S. Oct. 3, 2005). Additionally, the fact that Solleder
was sentenced at the lowest end of the guidelines does not
indicate that his sentence would likely have been different under
advisory guidelines. See United States v. Bringier, 405 F.3d
310, 317-18 & n.4. (5th Cir. 2005), cert. denied, 2005 U.S. LEXIS
6686 (U.S. Oct. 3, 2005). Finally, there is no indication that
the district court was inclined to decrease Solleder’s sentence
further based on his acceptance of responsibility.
Because Solleder has not established plain error under
Booker, we REINSTATE OUR JUDGMENT affirming his sentence.

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