United States v. Lachney

United States Court of Appeals
Fifth Circuit
F I L E D
January 23, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30490
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ELANDER MARK LACHNEY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 3:03-CR-179-ALL
______________________________
ON REMAND FROM THE SUPREME
COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
This court affirmed Elander Lachney’s sen-
tence. United States v. Lachney, 119 Fed.
Appx. 640 (5th Cir. 2005) (per curiam). The
Supreme Court vacated and remanded for fur-
ther consideration in light of United States v.
Booker, 543 U.S. 220 (2005). Lachney v.
United States, 125 S. Ct. 2276 (2005). We re-
quested and received supplemental letter briefs
addressing the impact of Booker.
* 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termined that this opinion should not be published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-
(continued...)
*(...continued)
cumstances set forth in 5TH CIR. R. 47.5.4.

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2
Lachney acknowledges that his challenge
under Booker is subject to plain error review
because in the district court he did not object
to the sentence on Sixth Amendment grounds.
“An 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.’” United
States v. Mares, 402 F.3d 511, 520 (5th Cir.)
(quoting United States v. Cotton, 535 U.S.
625, 631 (2002)), cert. denied, 126 S. Ct. 43
(2005).
The government agrees that Lachney satis-
fies the first two parts of the plain error test,
because the district court imposed a sentence
under guidelines it considered binding at the
time of the sentence.1 He fails on the third
prong, however, because he cannot show an
error affecting substantial rights. That is be-
cause there is no “indication in the record from
the sentencing judge’s remarks or otherwise
that gives us any clue as to whether [the judge]
would have reached a different conclusion.”
Id. at 522.2
The only “indication” that might be gleaned
from the court’s remarks cuts against Lachney,
because the judge found that the guideline
range was insufficient in view of Lachney’s
criminal history and the severity of the charged
conduct, so the court imposed a substantial
upward departure. Lachney cannot show that
the sentence would have been lower if the
guidelines had been voluntary at the time of
sentencing. Indeed, in a commendable exer-
cise in candor, Lachney’s attorney, in her
supplemental letter brief, acknowledges that
“the record . . . does not support that the dis-
trict court would have imposed a lesser sen-
tence if the guidelines had been advisory.”
Nonetheless, Lachney urges that the error
of applying the sentencing guidelines as man-
datory, in contravention of Booker, constitutes
structural error and thus must be deemed to
satisfy the third prong of the plain error test.
This court has rejected the argument that such
Booker error is structural. See United States
v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir.) (per curiam), cert. denied, 126 S. Ct. 464
(2005). “[W]e reject [the] argument that
Booker error is structural . . . .” United States
v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.)
(per curiam), cert. denied, 126 S. Ct. 194
(2005).
Finally, Lachney asserts that even if the er-
ror is not deemed structural, “it should be con-
sidered as among the class of errors that are
‘presumed prejudicial’” (citing United States v.
Olano, 507 U.S. 725, 735 (1993)). We have
dismissed this contention as well. See, e.g., id.
(“[W]e reject [the] argument . . . that Booker
error should be deemed prejudicial . . . .”).
1 United States v. de Jesus-Batres, 410 F.3d
154, 165-66 (5th Cir. 2005) (“[A]n error is plain
even though an objection at trial was not warranted
under existing law but a super[s]eding decision
before appeal reverses that well-settled law . . . . It
is enough that the law was settled at the time of
appellate consideration to make the error ‘plain.’”)
(citing Johnson v. United States, 520 U.S. 461,
468 (1997)), cert. denied, 2006 U.S. LEXIS 134,
and cert. denied, 2006 U.S. LEXIS 135, and cert.
denied, 2006 U.S. LEXIS 136 (U.S. Jan. 9, 2006).
2 Id. at 166 (observing that “[a] defendant sen-
tenced before . . . Booker faces a difficult challenge
in establishing that the sentencing court’s use of a
mandatory rather than an advisory Guidelines
(continued...)
2(...continued)
scheme actually affected the outcome of the pro-
ceedings”).

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3
AFFIRMED.

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