United States v. Chimney

* 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opinion should not be published and is not precedent except under the limited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
May 13, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20554
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JONATHAN CHIMNEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-362-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jonathan Chimney pled guilty to a two-count indictment
charging him with conspiracy and possession of more than fifty
grams of cocaine base, commonly known as crack cocaine, in
violation of 21 U.S.C. §§ 841 and 846. Chimney admitted to
possession of 53.7 grams of cocaine base. The PSR recommended a
base offense level of 32, a two-level enhancement for Chimney’s

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1 See United States v. Chimney, 88 Fed. Appx. 777, 2004 WL 326764 (5th
Cir. Feb. 18, 2004) (unpublished).
2 See Newsome v. United States, 125 S.Ct. 1112 (2005).
3 United States v. Mares, --- F.3d ----, 2005 WL 503715, *7 (5th Cir.
2005).
2
aggravating role in the offense as an organizer/leader, and a
three-level reduction for timely acceptance of responsibility,
producing in a total offense level of 31. The resulting guidelines
imprisonment range, after accounting for the statutory mandatory
minimum sentence of ten years, was 120-135 months. The district
court imposed the maximum guidelines sentence of 135 months’
imprisonment. We affirmed.1 The Supreme Court vacated our
judgment and remanded to us for further consideration in light of
United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005).2
Chimney argues that his sentence should be vacated in light of
Booker because the two-level enhancement was made on the basis of
disputed facts under a mandatory guidelines system. Because
Chimney did not raise a Booker-type objection in the district
court, we review only for plain error.3 As we recently described
in United States v. Mares,
[a]n appellate court may not correct an error
the defendant failed to raise in the district
court unless there is (1) error, (2) that is
plain, and (3) that affects substantial
rights. 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, integrity, or public reputation of

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4 Id. at *8 (quoting United States v. Cotton, 535 U.S. 625, 631 (2002))
(internal quotation marks omitted).
5 Id. at *9.
3
judicial proceedings.4
In the present case, the third prong has not been met.
Chimney has not carried his “burden of demonstrating that the
result would have likely been different had the judge been
sentencing under the Booker advisory regime rather than the
pre-Booker mandatory regime.”5
AFFIRMED.

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