* 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

June 17, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40738

Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

JONATHAN CHARLES FOWLER,

DefendantAppellant.

------------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:03-CR-1570-1

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

Before WIENER, STEWART and DENNIS, Circuit Judges.

PER CURIAM: *

Jonathan Charles Fowler challenges his sentence for transporting illegal a liens within the

United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(i). He argues, for the first time

on appeal, that the district court plainly erred under United States v. Booker

, 125 S. Ct. 738 (2005),

when it sentenced him under a mandatory sentencing guidelines regime.-2-

He also contends that the six-point enhancement of his base offense level, imposed for his possession

of a firearm during the offense, violated his Sixth Amendment rights because he did not stipulate to

possessing a firearm during the offense. This court reviews such arguments for plain error. U nited

States v. Valenzuela-Quevedo

,

___ F.3d

___ (5th Cir. Apr. 25, 2005) (No. 03-41754), 2005 WL

941353 at *3; United States v. Mares

, 402 F.3d 511, 520 (5 th Cir.), pet ition for cert. filed , No.

04-9517 (U.S. Mar. 31, 2005). Under the plain error standard, this court may not correct an error

raised for the first t ime o n appeal unless there is “(1) error, (2) that is plain, and (3) that affects

substantial rights.” M ares

, 402 F.3d a t 520. (citing U nited States v. Cotton

, 535 U.S. 625, 631

(2002)) (internal quotati ons omitted). “If all three conditions are met an appellate court may then

exercise its discretion to notice a forfeited error but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id.

In Valenzuela-Quevedo

, this court held that the mandatory application of the guidelines after

Booker is an error that is plain. V alenzuela -Quevedo

, 2005 WL 941353 at *4. The defendant,

nonetheless, must show that his substantial rights have been affected. Id. To meet this burden, the

defendant must establish that the error “affected the outcom e of the district court proceedings.” I d.

citing United States v. Olano , 507 U.S. 725, 734 (1993). Likewise, this court has held that, where

a defendant fail s t o raise in the district court the court’s use of facts neither found by a jury nor

admitted by the defendant to enhance the defendant’s sentence, this court’s review is for plain error.

Mares , 402 F.3d at 52 0

. A B ooker error rises to the level of plain error only if the defendant can

show that “the sentencing judge--sentencing under an advisory scheme rather then a mandatory

one--would have reached a significantly different result.” Id. at 522.-3-

At sentencing, t he dist rict court suggested that Fowler appeal his sentence in light of the

absence of detailed instruction as to the application of the enhancement for possession of a firearm

under U.S.S.G. § 2L1.1(b)(4)(C). Moreover, the overall tenor of the conversation between Fowler

and the court indicated the court’s willingness to grant Fowler favorable treatment, as evinced by the

court’s effort to assign Fowler to boot camp as opposed to prison. The district court also sentenced

Fowler to the minimum

sent ence under the guidelines. As such, there is some evidence that the

district court would have imposed a lesser sentence. S ee Valenzuela-Quevedo

, 2005 WL 941353 at

*4; Mares

, 402 F.3d at 522. Because Fowler has demonstrated a likelihood that he would have

received a lesser sentence under an advisory application of the sentencing guidelines, he has shown

plain error that affected his substantial rights and has met the third prong of the plain error test. S ee

United States v. Pennell

,

__ F.3d

__, No. 03-50926, 2005 WL 1030123 at *5 (5th Cir. May 4, 2005).

This court has held that errors in sentencing guidelines calculations that increase a defendant’s

sentence seriously affect the fairness, integrity , o r public reputation of judicial proceedings. S ee

United States v. Gracia-Cantu , 302 F.3d 308, 313 (5th Cir. 2002). Because Fowler has shown the

likelihood that the errors in this case increased his sentence, he has shown that the errors seriously

affects the fairness, i nt egrity, or public reputation of judicial proceedings. S ee Pennell

, 2005 WL

1030123 at **5-6.

The district court’s imposition of Fowler’s sentence pursuant to a mandatory application of

the sentencing guideli nes and based o n facts neither found by a jury nor admitted by Fowler was

plainly erroneous. Accordingly, Fowler’s sentence is VACATED, and this case is REMANDED to

the district court for resentencing consistent with Booker

.