* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

July 22, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 03-30968

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STEPHEN LEE VAZQUEZ,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

(03-CV-50023)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM: *

On January 24, 2005, the Supreme Court granted Vazquez’s

petition for a writ of certiorari, vacated the prior judgment of

this cou rt, and remanded this appeal to this court for

“consideration in light of United States v. Booker

, 543 U.S.___ [,

125 S. Ct. 738] (2005).” In its remand order the Supreme Court did

not specify which of the two majority opinions set forth in Booker2

was the basis for its remand decision. The Supreme Court did make

clear in its Booker decision that both opinions would be applicable

to all case s pending on direct review or not yet final as of

January 12, 2005. See Booker , 125 S. Ct. at 769 (citing Griffith

v. Kentucky

, 479 U.S. 314, 328 (1987)). Vazquez’s appeal satisfies

those conditions.

Vazquez pleaded guilty to conspiring to possess with intent to

distribute 50 grams or more of methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) and 846. In his original appeal to this court,

Vazquez claimed th at his sentence exceeded the maximum sentence

provided by the sentencing guidelines for the type of

methamphetamine charged in his indictment in violation of Apprendi

v. New Jersey

, 530 U.S. 466 (2000). Nothing in B ooker addresses

this claim of error, and Vazquez failed to object in the district

court on either of the grounds addressed in Booker : (1) a Sixth

Amendment violation resu lting from an enhancement of a sentence

based on facts (other than a prior conviction) found by the

sentencing judge, which were not admitted by the defendant or found

by the jury; or ( 2) that the Sentencing Guidelines were

unconstitutional because they were mandatory and not advisory.

Consequently, we review for plain error. U nited States v. Gore

,

298 F.3d 322, 324 (5th Cir. 2002). Because the district court did

not enhance Vazquez’s sentence on the basis of any facts found

solely by the court, we conclude that Booker ’s Sixth Amendment

holding is not applicable to this case.3

However, under the Booker holding that the Guidelines are to

be advisory and not mandatory, there is error in this case because

the district court viewed and acted under the Sentencing Guidelines

as mandatory and not discretionary. See Booker , 125 S.Ct. at 769;

United States v. Valenzuela-Quevedo

, 40 7 F.3d 728, 733 (5th Cir.

2005). Applying our plain error analysis, we conclude: (1) there

was error becau se the district court operated under a mandatory

scheme and not an advisory scheme; and (2) such error is now plain

under Johnson v. United States , 520 U.S. 461, 468 (1997) (holding

it is enough that error be plain at the time of appellate review).

However, under the third prong of our plain error methodology,

i.e.

, whether the error affects substantial rights, it is Vazquez’s

burden to show that, but for the error of acting on the premise

that the Guidelines are mandatory and not advisory, the district

court would have made a different decision. Valenzuela-Quevedo

, 407

F.3d at 733.

In United States v. Mares

, 402 F.3 d 511 (5th Cir. 2005), we

said that “the pertinent question is whet her [the defendant]

demonstrated that the sente ncing judge — sentencing under an

advisory scheme rather than a mandatory one

— would have reached a

significantly different result.” Id. at 521. That is, the plain

error standard places the burden of proof on the defendant and

requires “‘the defendant to show that the error actually did make

a difference: if it is equally plausible that the error worked in

favor of the defense, the defenda nt loses; if the effect of the4

error is uncertain so that we do not know which, if either, side it

helped the defendant loses.’ ” Id. (quoting United States v.

Rodriguez , 398 F.3d 1291, 1300 (11th Cir. 2005)).

The applicable sentencing range under the Guidelines in this

case, as determined by the presentence investigation report, was 97

to 121 months. Section 841(b)(1)(A) provides that a person found

guilty of violating s ubsection (a) is subject to a mandatory

minimum sentence of ten years’ imprisonment . The district court

judge sentenced Vazquez to this mandatory minimum. Therefore, even

if given the opportunity to treat the Guidelines as discretionary

only, the district court was nevertheless bound by statute to have

imposed at least the same sentence it did. Accordingly, we

determine that Vazquez cannot satisfy the third prong of our plain

error a nalysis, i .e.

, that the sentence imposed by the district

court violated his substantial rights.

We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in this

case. We therefore AFFIRM the conviction and sentence as set by

the district court.

AFFIRMED.