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

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m 03-40516

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CLAYTON HARRIS,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

m 4:02-CR-97-ALL

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2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH and WIENER,

Circuit Judges.*

PER CURIAM:

**

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

Bates. United States v. Harris, 96 Fed. Appx.

182 (5th Cir. 2004) (per curiam). The SupremeCourt vacated and remanded for further

consideration in light ofUnited States v. Booker, 125 S. Ct. 738 (2005). Harris v. United

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

and received supplemental letter briefs addressing the impact of Booker.

Harris claims there is error under Booker

because his sentencing level was increased by

two under the then-mandatoryfederalsentencing guidelines because the district court, rather

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

government seems to concede, albeit reluctantly, that this was plain error, and we agree.

The government correctly contends the

plain errorstandard ofreview 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 obstruction. He did not, however,

object that those facts were being decided by

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

asserts based on Booker.

Because no Sixth Amendment 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), petition for

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

“An appellate court may not correct an error

the defendant failed to raise in the district

court unlessthere is‘(1) error, (2) that is plain,

and (3) that affects substantial rights.’” Id.

(quoting United States v. Cotton, 535 U.S.

625, 631 (2002)). 

To show that his substantial rights are affected, Harris must “point[] to . . . evidence in

the record suggesting that the district court

would have imposed a lessersentence under an

advisory guidelines system.” United States v.

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

8701, at *4 (5th Cir. May 17, 2005) (per curiam) (citations omitted). 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 the guidelines

themselves or with the reasonableness of the

sentencing range designated by the guidelines.

Thus, he does not demonstrate that the court

would have imposed a different sentence if it

had deemed the guidelinesto 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 quorum. See 28 U.S.C.

§ 46(d).

** 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.