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this opinion should not be published and is not precedent except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

September 25, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30018

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY JAMES CATON,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:04-CR-20075-ALL

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

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gregory James Caton appeals the sentence imposed following

his guilty plea conviction of mail fraud and introduction of

unapproved new drugs into interstate commerce, in violation of

18 U.S.C. § 341 and 21 U.S.C. §§ 331(d), 355(a) and 333(a)(2). 

Caton argues that his sentence violates United States v. Booker,

543 U.S. 220 (2005), because the district court sentenced him

based on facts neither admitted by Caton nor found by a jury and

the district court sentenced him under the pre-Booker, mandatory
No. 06-30018

-2-

Guidelines.

The lack of an objection in the district court on these

issues requires this court to review his arguments for plain

error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.),

cert. denied, 126 S. Ct. 43 (2005); United States v.

Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.), cert. denied, 126

S. Ct. 464 (2005). In Caton’s case there was clear or obvious

Booker error because the district court imposed a sentence based

on judge-found facts that were neither admitted by Caton nor

found by a jury. See Mares, 402 F.3d at 520. However, Caton

cannot establish that this error affected his substantial rights. 

To meet this prong of the plain error test, “the error must have

affected the outcome of the district court proceedings.” Id. at

521.

To demonstrate that the error affected his substantial

rights, Caton argues that the district court attempted to be

lenient in determining his sentence and states that the district

court imposed the minimum Guidelines sentence. However,

imposition of a sentence at the low end of the Guidelines range

is not sufficient to demonstrate that a lower sentence would have

been imposed if the Guidelines had been advisory rather than

mandatory. United States v. Bringier, 405 F.3d 310, 318 n.4 (5th

Cir. 2005), cert. denied, 126 S. Ct. 264 (2005). Caton also

relies upon various comments made by the district court. The
No. 06-30018

-3-

district court’s comments, when read in context, do not indicate

displeasure with the pre-Booker Guidelines scheme.

Moreover, the district court stated that the Guidelines

calculations it was using were set forth in the presentence

report, which the district court found reasonably addressed the

criminal conduct in question. There is no evidence in the record

which suggests that the district court felt constrained by the

Guidelines and that if the judge had sentenced Caton under an

advisory sentencing regime rather than a mandatory one, Caton

would have received a lesser sentence. Caton has therefore

failed to establish that the judicial findings of fact upon which

his sentence is based is plain error under Booker. See United

States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005). Caton has

likewise failed to establish that the district court committed

plain error when it sentenced him under the pre-Booker, mandatory

Guidelines. Martinez-Lugo, 411 F.3d at 600-01. Finally, this

court has rejected the argument made by Caton that the error in

applying the Guidelines as mandatory is a structural error that

should be presumed prejudicial. Id. at 601 (neither Booker error

nor Fanfan error is structural).

For the foregoing reasons the judgment of the district court

is AFFIRMED.