1 Judge Pickering was a member of the original panel but

retired from the Court on December 8, 2004 and, therefore, did not

participate in this decision.

2 Pursuant to 5 T H 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this opinion should not be published and is not precedent except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

November 3, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-21213

Summary Calendar

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DUDLEY EARL MYERS,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Houston

USDC No. H-03-R-123-ALL

_________________________________________________________________

ON REMAND FROM

THE SUPREME COURT OF THE UNITED STATES

Before JOLLY and HIGGINBOTHAM, Circuit Judges. 1

PER CURIAM: 2

This court af firmed Dudley Earl Myers’s conviction and

sentence. U nited States v. Myers

, 108 Fed. App x. 937 (5th Cir.

2004). The Supreme Court vacated and remanded for further

consideration in the light of United States v. Booker

, 125 S.Ct.

738 (2005). M yers v. United States

, 125 S.Ct. 2281 (2005). We2

r equested and received supplemental letter briefs addressing th e

impact of Booker

.

In his supplemental brief, Myers argues t hat his Sixth

Amendment rights were violated because his sentence was enhanced

based on facts that he did not admit in his guilty plea. He

contends that, under Booker

, he can be held accountable only for

the $5,000 loss alleged in the count to which he pleaded guilty.

Although Myers objected to the sentencing enhancements before

the district court, he did not object on Sixth Amendment grounds.

Accordingly, we review his conten tions under the plain error

standard. U nited States v. Mares

, 402 F.3d 511, 520 (5th Cir.),

cert. denied , ___ S.Ct. ___, 200-5 WL 816208 (U.S. Oct. 3, 2005).

In the light of Booker

, the district court plainly erred by

calculating Myers’s Guidelines sentence based on facts not admitted

by Myers in his guilty plea and by viewing the Guidelines as

mandatory. I d

. at 520-21. Myers, however, has failed to carry his

burden of establishing that his substantial rights were affected by

the error. He has not pointed to any evidence in the record or

statements by the district court indicating that th e court would

have imposed a lesser sentence under advisory sentencing

guidelines. S ee id. at 521-22. The district court stated that it

had planned to impose a sentence at the upper end of the guideline

range, but sentenced Myers at the low end based on the Government’s

recommendation pursuant to the plea agreement. The court noted for

the record that it would have imp osed the same sentence even if3

Myers were entitled to a further reduction of his base offense

level. Under these circumstances, there is no basis for believing

that the district court would have imposed a lesser sentence had it

known that it had the discretion to do so.

For the foregoing r easons, we conclude that nothing in the

Supreme Court’s Booker decision req uires us to change our prior

affirmance in this case. We therefore reinstate our judgment

affirming Myers’s conviction and sentence.

JUDGMENT REINSTATED.