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this opinion should not be published and is not precedent except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

October 24, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

 

No. 04-50096

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD BURTON PIDCOKE, JR.,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-90-CR-110-1

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

We granted counsel’s motion for leave to withdraw pursuant

to Anders v. California, 386 U.S. 738 (1967), and dismissed

Pidcoke’s appeal. United States v. Pidcoke, No. 04-50096 (5th

Cir. Oct. 13. 2004) (unpublished). The Supreme Court vacated and

remanded for further consideration in light of United States v.

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

125 S. Ct. 1610 (2005). We requested and received supplemental

letter briefs addressing the impact of Booker. Pidcoke, who has
No. 04-50096

-2-

chosen to represent himself on remand from the Supreme Court, has

filed a motion for leave to file a reply brief out of time. His

motion is GRANTED.

Pidcoke argues that he made a relevant Booker-based

objection in the district court to the drug-amount enhancement to

his sentence and therefore the plain-error standard of United

States v. Mares, 402 F.3d 511 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517), does not apply to that issue

and his sentence should be vacated and the matter remanded for

resentencing. He asserts that he did not object to enhancements

for drug type, leadership role, or obstruction of justice and

that plain-error review does apply to those issues. He argues

that the district court plainly erred under Booker in applying

those enhancements because, in doing so, the district court

misapplied the Sentencing Guidelines. 

Because Pidcoke did not preserve a Booker issue in the

district court, review is for plain error. See Mares, 402 F.3d

at 513. Here, the district court erred by imposing a sentence

pursuant to a mandatory application of the sentencing guidelines. 

See Booker, 125 S. Ct. at 768; see also Mares, 402 F.3d at 520-21

& n.9. However, Pidcoke must establish that the error was

“sufficient to undermine confidence in the outcome [of the

case].” United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir. 2005) (internal quotation marks and citations omitted),

petition for cert. filed, (Jul. 25, 2005) (No. 05-5556). Pidcoke
No. 04-50096

-3-

cannot make such a showing because the record does not establish

that the sentencing court would have imposed a different sentence

had it been proceeding under an advisory guideline scheme. The

district court sentenced Pidcoke to approximately the middle of

the guideline range, 210 months in prison, and it did so without

comment. Thus, Pidcoke cannot establish plain error, and his

Booker argument fails. 

Pidcoke’s arguments regarding the misapplication of the

guidelines are beyond the scope of this remand and are not

cognizable in this remand. See Gradsky v. United States, 376

F.2d 993, 996 (5th Cir. 1967). Finally, Pidcoke’s argument that

the Mares plain-error standard of review should not be applied

because he was sentenced pre-Booker is meritless. Mares, too,

was sentenced pre-Booker. The district court’s judgment is

AFFIRMED.