*

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should not be published and is not precedent except under the limited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

March 15, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 02-10704

consolidated with

No. 02-10975 and

No. 02-11364

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM MORRIS RISBY,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:00-CR-442-1-R

_________________________________________________________________

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.

PER CURIAM:*

This court affirmed the judgment of conviction and

sentence of William Morris Risby. United States v. Risby, No. 02-

11364 (5th Cir. Nov. 12, 2004). The Supreme Court vacated and

remanded for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005). See Risby v. United States, 125 S.
2

Ct. 1872 (2005). We requested and received supplemental letter

briefs addressing the impact of Booker.

At the district court and in his original appeal to this

court, Risby objected to the district court’s enhancements, arguing

that the enhancements were not supported by sufficient evidence.

To preserve Booker error, a defendant need not explicitly cite

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

Blakely v. Washington, 542 U.S.296, 124 S. Ct. 2531 (2004), or the

Sixth Amendment. See United States v. Akpan, 407 F.3d 360, 376

(5th Cir. 2005). However, he must “adequately apprise[] the court

that he was raising a constitutional error.” United States v.

Olis, slip. op. at 8 (5th Cir. Oct. 31, 2005). The argument must

be couched in terms that the facts used to enhance the sentence

were not proven to a jury beyond a reasonable doubt. See Akpan,

407 F.3d at 376, 377 (finding that one defendant, who had objected

on reasonable doubt grounds, had preserved Booker error, but

finding that the other, who did not “couch his arguments ... in the

same terms,” did not preserve Booker error); United States v.

Bringier, 405 F.3d 310, 315 (concluding that the defendant had not

preserved his Booker objection even though he objected at trial

that the evidence did not support an enhancement because the court

did not “consider his arguments below in the ‘essence’ of Blakely

and the Sixth Amendment”).
3

Here, Risby’s objections did not apprise the district

court that he was raising a constitutional claim of error. He

objected that the enhancements were not supported by even a

preponderance of the evidence. This claim goes to the factual basis

of the enhancement, not the constitutional validity of it. Because

Risby did not preserve a Booker-like objection in the district

court, we review for plain error. See United States v. GarciaRodriguez, 415 F.3d 452, 456 (5th Cir. 2005) (finding that raising

the Booker issue in a supplemental, 28(j) letter is sufficient to

preserve plain error review).

Under the Booker holding that changes the Guidelines from

mandatory to advisory, there is error in this case because the

district court viewed and acted under the Sentencing Guidelines as

mandatory and not discretionary. Risby, however, identifies no

evidence in the record suggesting that the district court “would

have reached a significantly different result” under an advisory

scheme rather than a mandatory one. United States v. Mares,

402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S. Ct. 43

(2005). Indeed, Risby was sentenced at the top of the applicable

Guideline range. Accordingly, Risby cannot make the necessary

showing of plain error that is required by our precedent. See

United States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005)

(comments that sentence was “harsh” are insufficient to demonstrate
4

that defendant’s substantial rights were affected), cert. denied,

126 S. Ct. 264 (2005); United States v. Creech, 408 F.3d 264, 272

(5th Cir. 2005) (“[M]ere sympathy ... is not indicative of a judge’s

desire to sentence differently under a non-mandatory Guidelines

regime.”); United States v. Hernandez-Gonzalez, 405 F.3d 260, 262

(5th Cir. 2005) (sentence at the bottom of the Guideline range and

potential mitigating factors do not raise a reasonable probability

of a different sentence), cert. denied, 126 S. Ct. 202 (2005).

Because nothing in the Supreme Court's Booker decision

requires us to change our prior affirmance in this case, we adhere

to our prior determination and therefore reinstate our judgment

AFFIRMING Risby’s conviction and sentence.

AFFIRMED.