United States v. Muhammad

United States Court of Appeals
Fifth Circuit
F I L E D
May 18, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 03-10137
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BOOKER T. MUHAMMAD,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:02-CR-83-1-Y
______________________________

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2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH and WIENER,
Circuit Judges.*
PER CURIAM:**
This court afirmed defendant Booker
Muhammad’s conviction and sentence. United
States v. Muhammad, 91 Fed. Appx. 972 (5th
Cir. 2004) (per curiam). The Supreme Court
vacated and remanded for further consider-
ation in light of United States v. Booker, 125
S. Ct. 738 (2005). Muhammad v. United
States, 125 S. Ct. 1006 (2005).
Muhammad concedes that no Sixth Amend-
ment objection was raised in the district court,
so we should review for plain error. See
United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005), petition for cert. filed (Mar.
31, 2005) (No. 04-9517). “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.’” Id. (quoting United States
v. Cotton, 535 U.S. 625, 631 (2002)).
In its supplemental letter brief addressing
Booker, the government “concedes that in light
of Booker, the district court committed a clear
or obvious error in sentencing Muhammad
based on facts not found by a jury or admitted
by the defendant, and in doing so under a
mandatory guidelines system.” The govern-
ment correctly observes, however, that even
without the challenged drug quantity, the
district court, on resentencing, “would be pre-
sented with []an advisory guideline range
containing the same sentence it already im-
posed, and could thus impose that same sen-
tence.” It follows that Muhammad cannot
show that he would receive a lesser sentence
on remand.
Muhammad urges that, nonetheless, the
error is structural. As this court has held,
however, “we reject [the] argument toat Book-
er error is structural and insusceptible to harm-
less error analysis, and that Booker error
should be presumed prejudicial, as both claims
are in conflict with Mares.” United States v.
Malveaux, 2005 U.S. App. LEXIS 5960, at *4
n.9 (5th Cir. Apr. 11, 2005) (per curiam)
(unpublished). Muhammad’s substantial rights
have not been affected.
The judgments of conviction and sentence
are AFFIRMED.
* Judge Duhé was a member of this panel when
the opinion issued on April 5, 2004. Although he
remains a Senior Circuit Judge on this court, he is
currently not hearing cases. Accordingly, this
matter is decided by a quorum. See 28 U.S.C.
§ 46(d).
** 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
circumstances set forth in 5TH CIR. R. 47.5.4.

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