* 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this opinion should not be published and is not precedent except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

FILED

August 2, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-30916

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURICE RIEMER CALHOUN, JR.,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:03-CR-50021-1

---------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DAVIS, GARZA, and PRADO, Circuit Judges. 

PER CURIAM:*

On August 26, 2004, this court affirmed the sentences of

Maurice Riemer Calhoun, Jr. United States v. Calhoun, 383 F.3d

281 (5th Cir. 2004). The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125 

S. Ct. 738 (2005). Calhoun v. United States, 125 S. Ct. 1068

(2005). We requested and received supplemental letter briefs

addressing the impact of Booker. 
No. 03-30916

-2-

Calhoun contends that the district court violated his Sixth

Amendment rights under Booker by imposing Sentencing Guidelines

increases based on factors that were neither submitted to a jury

for proof beyond a reasonable doubt nor admitted by him. He

concedes that such argument is raised for the first time and is

reviewable for plain error only. See United States v. Mares, 402

F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517). The parties do not dispute that the

first two prongs of the plain-error test have been satisfied:

There is Sixth Amendment error in Calhoun’s case, and such error

is “plain” under Booker. See id. at 521. 

To satisfy the third prong of the plain-error test, Calhoun

must show that his “substantial rights” were affected. See id.

“The pertinent question is whether [the appellant] demonstrated

that the sentencing judge-–sentencing under an advisory scheme

rather than a mandatory one-–would have reached a significantly

different result.” Id. This question requires us to assess

whether “there is [an] indication in the record from the

sentencing judge’s remarks or otherwise that gives us any clue as

to whether [ ]he would have reached a different conclusion” if

sentencing under an advisory scheme. Id. at 522. That the

district court sentenced Calhoun to 60 months in prison, within a

51-to-63-month guideline imprisonment range, and that the court

stated that it was “going to follow the rules,” are not
No. 03-30916

-3-

indications that the court would have imposed a “significantly

different result.” No plain error is apparent.

Calhoun also contends that the application of a mandatory

Guidelines regime was a “structural” error that was “per se

prejudicial” and “infect[ed]” his trial in a “pervasive and

systemic manner.” Sentencing a defendant pursuant to a mandatory

guideline scheme, standing alone, constitutes “Fanfan” error, and

such an error is “plain.” See Booker, 125 S. Ct. at 750, 768-69

(addressing preserved challenge in companion case); United States

v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). For

the reasons discussed above in connection with Calhoun’s first

argument, however, Calhoun has not established that such error

affected his substantial rights. See Valenzuela-Quevedo, 407

F.3d at 733.

Calhoun’s supplemental brief contains an informal request

that this court grant en banc consideration to the issue whether

Mares’s plain-error formulation for Booker cases is correct. He

also has filed a motion for leave to file a second supplemental

brief addressing why he believes Mares was incorrectly decided. 

Calhoun has not remotely complied with FED. R. APP. P. 35 and 5TH

CIR. R. 35, which govern the filing of petitions for en banc

consideration. The request for en banc consideration and the

motion for leave to file a second supplemental brief are DENIED.

AFFIRMED; REQUEST AND MOTION DENIED.