United States v. Harris

United States Court of Appeals
Fifth Circuit
F I L E D
May 26, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-40516
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLAYTON HARRIS,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 4:02-CR-97-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH and WIENER,
Circuit Judges.*
PER CURIAM:**
This court affirmed the sentence of defen-
dant Clayton Harris, whose real name is Clyde
Bates. United States v. Harris, 96 Fed. Appx.
182 (5th Cir. 2004) (per curiam). The Su-
preme Court vacated and remanded for further
consideration in light of United States v. Book-
er, 125 S. Ct. 738 (2005). Harris v. United
States, 125 S. Ct. 1040 (2005). We requested
and received supplemental letter briefs ad-
dressing the impact of Booker.
Harris claims there is error under Booker
because his sentencing level was increased by
two under the then-mandatory federal sentenc-
ing guidelines because the district court, rather
than a jury, made the factual finding that Har-
ris had engaged in obstruction of justice. The
government seems to concede, albeit reluc-
tantly, that this was plain error, and we agree.
The government correctly contends the
plain error standard of review should apply be-
cause Harris did not preserve a Sixth Amend-
ment error. Harris relies on the fact that he
did object to the evidence on which the court
found obstruction. He did not, however,
object that those facts were being decided by
the court rather than the jury. This was inade-
quate to preserve the error that Harris now
asserts based on Booker.
Because no Sixth Amendment objection
was raised in the district court, we 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)).
To show that his substantial rights are af-
fected, Harris must “point[] to . . . evidence in
the record suggesting that the district court
would have imposed a lesser sentence under an
advisory guidelines system.” United States v.
Taylor, No. 03-10167, 2005 U.S. App. LEXIS
8701, at *4 (5th Cir. May 17, 2005) (per cur-
iam) (citations omitted). Harris points to the
fact that the court sentenced him to the lowest
sentence under the applicable guideline range.
He refers, however, to no evidence indicating
the court’s displeasure with the guidelines
themselves or with the reasonableness of the
sentencing range designated by the guidelines.
Thus, he does not demonstrate that the court
would have imposed a different sentence if it
had deemed the guidelines to be only advisory.
The judgment of sentence is AFFIRMED.
* Judge Duhé was a member of this panel when
the opinion issued on April 19, 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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