United States v. Hollywood

*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opinion should not be published and is not precedent except under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
July 6, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 04-10277
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BRANDON M. HOLLYWOOD, also known as Swap,
also known as Earl,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(USDC No. 3:03-CR-78-13-N)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On March 28, 2005, the Supreme Court granted Hollywood’s
petition for a writ of certiorari, vacated the prior judgment of
this court, and remanded this appeal to this court for
“consideration in light of United States v. Booker, 543 U.S.___ [,
125 S. Ct. 738] (2005).” In its remand order the Supreme Court did

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not specify which of the two majority opinions set forth in Booker
was the basis for its remand decision. The Supreme Court did make
clear in its Booker decision that both opinions would be applicable
to all cases pending on direct review or not yet final as of
January 12, 2005. See Booker, 125 S. Ct. at 769 (citing Griffith
v. Kentucky, 479 U.S. 314, 328 (1987)). Hollywood’s appeal
satisfies those conditions.
In his original appeal to this court, Hollywood claimed two
grounds of error: first, erroneous denial of his motion to withdraw
his guilty plea; and second, his assertion that the district court
erred in fixing his sentence as a career offender. Nothing in
Booker addresses either of these claims of error, and Hollywood
failed to object in the district court on either of the grounds
addressed in Booker, i.e., (i) a Sixth Amendment violation
resulting from an enhancement of a sentence based on facts (other
than a prior conviction) found by the sentencing judge, which were
not admitted by the defendant or found by the jury; or (ii) that
the Sentencing Guidelines were unconstitutional because they were
mandatory and not advisory. Consequently, we review for plain
error. Because the district court did not enhance Hollywood’s
sentence on the basis of any facts found solely by the court, we
conclude that Booker’s Sixth Amendment holding is not applicable to
this case. However, under the Booker holding that the Guidelines
are to be advisory and not mandatory, there is error in this case
because the district court viewed and acted under the Sentencing

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Guidelines as mandatory and not discretionary. Applying our plain
error analysis, we conclude: (1) there was error because the
district court operated under a mandatory scheme and not an
advisory scheme; and (2) such error is now plain under Johnson v.
United States, 520 U.S. 461, 468 (1997)(holding it is enough that
error be plain at the time of appellate review). However, under
the third prong of our plain error methodology, i.e., whether the
error affects substantial rights, it is Hollywood’s burden to show
that, but for the error of acting on the premise that the
Guidelines are mandatory and not advisory, the district court would
have made a different decision. In United States v. Mares, 402
F.3d 511, 521 (5th Cir. 2005), we said that “the pertinent question
is whether [the defendant] demonstrated that the sentencing
judgeSSsentencing under an advisory scheme rather than a mandatory
oneSSwould have reached a significantly different result.” That
is, the plain error standard places the
burden of proof [on the defendant] and re-
quires “the defendant to show that the error
actually did make a difference: if it is
equally plausible that the error worked in
favor of the defense, the defendant loses; if
the effect of the error is uncertain so that
we do not know which, if either, side it
helped the defendant loses.”
Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th
Cir. 2005)).
There is nothing in the record that supports the proposition

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that the district court, if given the opportunity to treat the
Guidelines as discretionary only, would likely have imposed a
different sentence. The only remarks of the district court at
sentencing demonstrate that the court considered the objectives of
sentencing identified in subsections (A)-(D) of 18 U.S.C. §
3553(a)(2). Accordingly, we determine that Hollywood has failed to
satisfy the third prong of our plain error analysis, i.e., that the
sentence imposed by the district court violated his substantial
rights.
We conclude, therefore, that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in this
case. We therefore affirm the conviction and sentence as set by the
trial court. AFFIRMED.

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