United States Court of Appeals

Fifth Circuit



## FILED

May 26, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-40516

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### C LAYTON 

### H ARRIS



### ,

Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Eastern District of Texas



### m 4:02-CR-97-ALL

______________________________2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before S MITH

and W IENER

, Circuit Judges. *

P ER C URIAM : **

This cou rt affirmed the sentence of defendant Clayton Harris, whose real name is Clyde

Bates. U nited States v. Harris

, 96 Fed. Appx.

182 (5th Cir. 200 4) (per curi am). The Supreme Court vacated and remanded for further

consideration in light of United States v. Booker

, 125 S. Ct. 738 (2005). H arris v. United

States

, 125 S. Ct. 1040 (2005). We requested

and received supplementa l letter briefs addressing the impact of Booker

.

Harris claims there is erro r under B ooker

because his sentencing level was increased by

two under the then-mandatory federal sentencing guidelines because the district court, rather

than a jury, made the factual finding that Harris had engaged in obstruction of justice. The

gov e rnment seems to concede, albeit reluctantly, that this was plain error, and we agree.

The gove r nment correctly contends the

plain error standard of review should apply because Harris did not preserve a Sixth Amendment error. Harris relies on the fact that he

did object to the evidence on which the court

found obstruc t ion. He did not, however,

object t hat those facts were being decided by

the court rather than the jury. This was inadequate to preserve the error that Harri s now

asserts based on Booker

.

Because no Sixth Amendm ent objection

was raised in the district court, we review for

plain error. See United States v. Mares , 402

F.3d 511, 520 (5th Cir. 2005), p etition for

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

“An appellate court may not correct an error

the defendant failed to ra ise in the district

court unless there is ‘(1) error, (2) that is plain,

and (3) that affects subst ant ial rights.’” I d.

(q u oting United States v. Cotton

, 535 U.S.

625, 631 (2002)).

To show that his substant ial rights are affected, Harris must “point[] to

. . . evidence in

the record suggesting that the district court

would have imposed a lesser sentence under an

advisory guidelines system.” U nited States v.

Taylor

, No. 03-10167, 2005 U.S. App. LEXIS

8701, at *4 (5th Cir. May 17, 2005) (per curiam) (citations o mitted). Harris points to the

fact that the court sentenced him to the lowest

sentence under the applicable guideline range.

He refers, however, to no evidence indicating

the court’s displeasure with t he guidelines

the m selves or with the reasonableness of the

sentencing range designated by the guidelines.

Thus, he does not demonstrate tha t the court

would have imposed a different sentence if it

had deemed the guidelines to be only advisory.

The judgment of sentence is AFFIRMED. * Judge Duhé was a member of this panel when

the opinion issued on April 19, 2004. Although he

remains a Senior Circuit Judge on this court, he is

currently not hearing cases. Accordingly, this

matter is decided by a q

uorum

. S ee 28 U.S.C.

§ 46(d).

** Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent exc ept under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.