* 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this opinion should not be published and is not precedent except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 12, 2005

Charles R. Fulbruge III

Clerk

 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

 No. 04-10769 

Conference Calendar

 

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RAYLATE BROOKS

Defendant-Appellant

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

Appeal from the United States District Court

for the Northern District of Texas 

USDC No. 4:04-CR-46-2-A 

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

This court affirmed the conviction and sentence of Raylate

Brooks. United States v. Brooks, No. 04-10769 (5th Cir. Dec. 17,

2004) (unpublished). The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125 S.

Ct. 738 (2005). We requested and received supplemental letter

briefs addressing Booker’s impact. 
No. 04-10769

-2-

Brooks argues that his sentence is illegal under Booker

because he was sentenced to “eight years [of] imprisonment on the

basis of guidelines enhancements which were unconstitutionally

applied to him by the district court as they were neither proved

to a jury beyond a reasonable doubt, nor admitted by him.” He

also acknowledges that there “is no statement in the record that

could support an inference that [he] would receive a lesser

sentence from the sentencing judge if the case was remanded under

ordinary circumstances.” Id. He argues, however, that the

district court will be “compelled” to give him a lesser sentence

because due process and ex post facto principles require that the

court resentence him based on a strict application of the

guidelines, without any increase in his sentence based on

enhancements that violate the Sixth Amendment under Booker. Id.

at 1-3. 

Brooks concedes that he failed to preserve his argument in

the district court and that review of his argument is for plain

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

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);

United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.

2005), petition for cert. filed (July 25, 2005) (No. 05-5556). 

In order to establish that he is entitled to relief under a

plain-error analysis, Brooks bears the burden of demonstrating,

inter alia, that the sentencing court would have imposed a

different sentence had it sentenced him under an advisory, rather
No. 04-10769

-3-

than mandatory, application of the guidelines. See ValenzuelaQuevedo, 407 F.3d at 733. Brooks concedes that he cannot make

such a showing. Brooks’s argument that he must be resentenced

under a strict application of the guidelines, without any

increase based on enhancements not found by a jury or admitted by

him, is foreclosed by United States v. Scroggins, 411 F.3d 572,

576-77 (5th Cir. 2005). Accordingly, we conclude that nothing in

the Supreme Court’s Booker decision requires us to change our

prior affirmance in this case. We therefore reinstate our

judgment affirming Brooks’s conviction and sentence.

AFFIRMED