* Pursuant to 5 T H C IR

. R

. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 16, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 04-10254

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY LAMONT AUSTIN,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

USDC No. 4:03-CR-256-ALL-A

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM: *

On a previous appeal, we affirmed Gregory Lamont Austin’s sent ence for being a felon in

possession of a firearm. United States v. Austin

, 111 Fed.Appx. 783 (5th Cir. Nov. 11, 2004) (per

curiam) (unpublished). Austin sought )) and the Supreme Court granted )) a writ of certiorari. The2

Supreme Court vacated the judgment and remanded the case for fur t her consideration in light of

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

Austin failed to raise a Booker claim before the district court. Thus, we review his sentence

for plain error. U

nited States v. Mares

, 402 F.3d 511, 521 (5t h Cir. 2005), p etition for cert. filed

(Mar. 31, 2005) (No. 04-9517). Under plain error, this court may only correct a defendant’s sentence

if there is an: (1) error; (2) that is plain; (3) that affects substantial rights; and (4) the error seriously

affects the fairness, integrity, or public reputati on of judicial proceedings. U nited States v. Cotton

, 535

U.S. 625, 631 (2002); see also F ED

. R. C RIM

. P. 52(b) (“A plain error that affects substantial rights

may be considered even though it was not brought to the court’s attention.”).

To show reversible plain error under B ooker

, the petitioner must “demonstrate[] that the

sentencing judge )) sentencing under an advisory scheme rather than a mandatory one )) would have

reached a significant ly different result.” M ares

, 402 F.3d at 521. “[I]f 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 is helped, the defendant loses.” I d. Austin concedes that he

cannot show that he would have received a lower sentence had the Guidelines been advisory rather

than mandatory.

Austin instead contends that Booker violates the Ex Post Facto and Due Process Clauses. Even

if these were valid attacks on Booker , we must follow Supreme Court precedent. S ee Rodriguez de

Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of [the

Supreme Court] has direct application in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the

Supreme Court] the prerogative of overruling its own decisions.”).3

Accordingly, we conclude that nothing in the Supreme Court’s Booker decision requires us

t o change our prior affirmance in this case. We therefore reinstate our judgment affirming t he

defendant’s conviction and sentence.