United States Court of Appeals

Fifth Circuit



## FILED

May 2, 2005

Charles R. Fulbruge III

Clerk REVISED MAY 16, 2005



## In the



# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-11299

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### F RANK 

### P ACO 

### G UEVARA



### ,

Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

Before H IGGINBOTHAM , S MITH , and

B ENAVIDES , Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Frank Guev ara challenges his conviction

under 18 U.S.C. § 2332a of threatening to use

a weapon of mass destruction (“WMD”). He also appeals his classi fication as a career offender under the senten cing guidelines. Finally, he challenges his sentence in light of

Blakely v. Washington

, 124 S. Ct. 2 5 31

(2004), and United States v. Booker

, 125 S.2

Ct. 738 (2005). 1 Finding no reversible error,

we affirm.

I.

Guevara committed what i s called an “anthrax hoax.” In August 2002 he wrote and

mailed a letter to United States District Judge

Mary Lou Robins o n. An employee at the

court’s mail depository retrieved the letter and,

recognizing that it was from an inmate, opened

the envelope, which contained a white, powdery substance that got onto t h e employee’s

fingers. The letter stated:

Mary Lou Robinson,

I am sick and t ired of y our games[.] All

[A]merican s will die as well as you. You

have been now been [sic] exposure [sic] to

anthrax.

Mohammed Abdullah.

The substance in the envelope turned out to be

harmless hair gel and powdered cleanser.

The incident effectively closed the federal

building for a period o f time. Local police

with hazardous materials training, bomb squad

personnel, and the FBI responded. The building’s air conditioning had to be turned off.

Judge Robinson (the target of the letter) shut

down her courtr o o m. The federal building

housed numero us federal agencies that were

required to close for the rest of the day.

The government charged Guevara with

(1) threatening to use a WMD in violati on of

18 U.S.C. § 2332a and (2) mailing a threatening co mmunication by way of the United

States Postal Service in violation of 18 U.S.C.

§ 876. During trial, Guevara moved for judgment of ac quit t al at the close of the government’s case and at the close of al l of t he evidence. His motions were denied, and the jury

convicted him on both counts.

The presentence re p ort (“PSR”) classified

Guevara as a career offender under the guidelines because he was over eighteen years of

age at the time of the crime, he had at l east

two convictions for crimes of violence, and the

probation officer characterized the § 2332a

conviction as a crime of violence. Guevara

objected to the career offender classification,

arguing that the instant WMD conviction was

no t a crime of violence. The district court

overruled his objection and, based on this

classification, imposed a sentence of life imprisonment. 2

II.

A.

1.

We review the denial of a motion for judgment of acquittal de novo

. S ee United States

v. DeLeon

, 170 F.3d 494, 496 (5th Cir. 1999).

When reviewi ng the sufficiency of the evidence, we consider “‘whether a reasonable trier of fact could have found that the evi dence

established the essential elements of the crime

beyond a reasonable doubt.’” U nited States v.

Cathey

, 259 F.3d 365, 368 (5th Ci r. 2001)

(quoting United States v. Ort ega Reyna , 148

F.3d 540, 543 (5th Cir. 1998)).

1 The challenge pursuant to Booker is made in

a supplemental letter brief filed at this court’s request after Booker

was announced. 2 Guevara does not challenge his conviction under § 876. Given the statutory maximum punishment of life in prison under § 2332a, Guevara’s

offense level was raised fr om 27 to 37, and his

criminal history category was raised from V to VI.

The se adjustments dictated a sentencing range of

360 months to life.3

§ 2332a provides in relevant part:

A per s on who, without lawful authority,

uses, threatens, or attem

pts or conspires to

use, a weapon of mass destr u ction

. . . (2) against any person

within the United

States, and the results of such us e affect

interstate or foreign commerce or, in the

case of a threat, attem

pt, or conspiracy,

would have affected interstate or forei gn

commerce

. . . sha ll be imprisoned for any

term of years or for life . . . .

When cons t ruing a criminal statute, we are

bound by the plain and unambiguous meaning

of its language. S ee United States v. Kay

, 359

F.3d 738, 742 (5th Cir. 2004). We look first

to the words’ ordinary and natural meaning

and the overall policies and objectives of the

statute. S ee id. We must seek to give every

word in the statute some operative effect. S ee

id.

2.

Guevara contends that to secure a conviction under § 2332a, the government must establish both that he made a “threat” and that it

encompa ssed t he “use” of a weapon of mass

destruction. Guevara makes arguments that

would, in the absence of preclusive authority,

make closer the issue of whether “to threaten

to use” requires an expression of intent to act

in the f u ture. There are plain-language and

legislative history arguments that, in a vacuum,

might lend credence to Guevara’s inter p retation. 3 These arguments are nonetheless unavailing

in light of United States v. Reynolds

, 381 F.3d

404, 406 (5th Cir. 2004), cert. denied

, 125 S.

Ct. 922 (2005), in which we construed

§ 2332a to contain no requirement of future

action:

We have found no credibl e support for a

definition of “threat” that requires reference

to a future act. We therefore conclude that

the proper definition of “threaten” in

§ 2332a is that adopted by this court in

Myers : a communication that has a reasonable t endency to create apprehension that

[t h e] originator of the communication will

act as represented.

In Reynolds the defendant, who was involved

in a dispute with a mortgage company, told the

company’s telephone operator that he had just

dumped anthrax int o the air conditioning

system. I d. at 405. C ompany security personnel ultimately deemed the threat to be noncredible and decided not to evacuate the building. Reynolds was nonetheless convicted under § 2332a for threatening to use a WMD.

On appeal Reynolds argued that he had not

“threatened” to use a WMD because the statement in question conveyed only the completion

of a past act. Citing U

nited States v. Myers

, 104 F.3d 76, 79 (5th Cir. 1997), we held that

§ 2332a’s threat language does not require reference to a future act. 4 There is no reason

3 Guevara points to legislative materials that

suggest Congress perceived anthrax hoaxes to remain uncovered by existing laws. Those materials

include (1) the fact that Congress recently enacted

a law to punish them and (2) the fact that, except in

very limited circumstances, the maximum pun-

(continued...) 3 (...continued)

ishment in that legislation is five years in prison.

4 Guevara makes much of the fact that the

statute says “to use,” and he reads the “to use”

language as requiring future action. Aside from

the fact that Reynol ds f

orecloses this interpretation,

we remain skeptical of any earnest attempt to read

(continued...)4

able way to distinguish that ruling here.

Once we have interpreted § 2332a to have

no future-action requirement, the eviden tiary

question is an easy one. Guevara claimed to

have mailed anthrax, and the record is more than sufficient to sustain the conviction under

our interpretation of the statutory language.

B.

Although we ordinarily review jury instructions for abuse of discretion, we review an instructi on de novo where there is the possibility

that the jury instruc t io n misstated an element

of the crime, because that is an issue of statutory construction. S ee United States v. Ho

, 311 F.3d 589, 605 (5th Cir. 2002 ). Guevara

objected to the jury instruction indicating that

the government did not have to prove that he

actually intended or was able to carry out the

threat. The district court instructed the jury as

follows:

A threat is a serious statement exp r essing

an intention

t o do an act which under the

circumstances would cause apprehension in

a reasonable person, as distinguished from

idle or careless talk, exaggeration, or someth ing said in a joking manner. It is not

necessary to prove that the defendant actually int ended or was able to carry out the

threat made.

We view this is sue as redundant of that discussed in part II.A.2. If, as we have held both

here and in Reynolds

, a perso n can violate

§ 23 32a merely by making a statement about

completed action, and if, as we held in R eynolds

, that threat need not be credible, there is

no problem with the court’s instruction regarding intent or plausibility.

III.

Section 2332a require s the government to

show that the use of a WMD, as threatened,

would have affected interstate commerce. In

United States v. Wise

, 221 F.3d 140, 152 (5th

Cir. 2000), we held tha t , in the case of a

§ 2332a threat, there need not be an actual or

substantial effect on commerce. 4 (...continued)

too much into the “to use” language. To be sure,

§ 2332a is not a glittering example of statutory

craftsmanship. Again, it reads:

A person who, witho ut lawful authority, uses,

threatens, or attempts to use, a weapon of mass

destruction

. . . (2) against any p erson within

the United States, and the res ults of such use

affect interstate or foreign commerce or, in the

case of a threat, attempt, or conspiracy, would

have affected interstate or foreign commerce

. .

. shall be imprisone d for any term of years or

for life . . . .

G uevara would distribute the phrase “to use” up

str eam in the sentence, applying it to the word

“threaten,” to get to the requirement that Guevara

“threaten to use.” Such distributive mechanics,

however, would also require that “to use” be distributed upstream to the word “uses,” a grammatical construction that leaves something to be desired.

That construction, however, is probably superior to the alternativ e, which is to decline to distribute “to use” upstream . T his alternative construction would leave the sta t ute an unintelligible

law punishing any “person who, without lawful authority

. . . threatens

. . . a weaponof mass destr uction.” We are faced with the unenticing

choice, on the basis of the “to use” language, between a construction that reads “uses . . . to use”

and a construction that leaves the statute without a

direct object. We therefore decline to refocus intensely on the “to use” language where R eynolds

would seem to foreclose the question in any event.

See Reynolds

, 381 F.3d at 406 (explicitly contemplating the phrase “threaten to use”).5 A.

The court erroneously instructe d the jury

that, to convict Guevara under § 2332a, it had

to find that t he WMD, if used as threatened,

would have substantially affected interstate

co mmerce; the statute requires only that the

threat, if carried out, would have some effect,

not ne c essarily a substantial one. The court

instructed that “commerce” meant the “flow of

goods, merchandise, money, or other property

between states.” The interstat e commerce

element was stated properly in the indictment.

Guevara argues that because the ins tructions mistakenly stated, without go v ernment

objectio n, t he degree of effect required on

commerce, the “substanti a lly affected” language became “law of the case,” and the government had t o pro ve it beyond a reasonable

doubt. Although there is no binding precedent

in this circuit, there is persuasive authority that

guides our analysis.

In United States v. Zanghi

, 189 F.3d 71,

79-80 (1st Cir. 1999), the c ourt hel d that

where a misstated element is includ ed in the

jury instruction, but not in the indictment, the

misstated element does not necessarily become

law of the case. Our court has held as much,

a lbeit in an unpublished opinion. S ee Unite d

States v. Munoz-Hernandez , 94 Fed. Appx.

243, 2 45 (5th Cir. 2004) (unpublished), v acated on other grounds , 125 S. Ct. 999

(2005). We now adopt the First Circuit rule,

to t he effect that the “substantially affected”

langu age does not become law of the case. 5

Consistent with the foregoing authorities, the jury instruction may not become law of the

case if both (1) it is pate nt ly erroneous and

(2) the issue is not misstated in the indictment.

B.

We review the interstate commerce element

determi nat ion for sufficiency of the evidence

by deciding whether, after viewing the evidence in the light most favorable t o the verdict, any rational trier of fact could have found

the essential elements of the offense beyond a

reasonable doubt. S ee United States v. Daniel , 957 F.2d 162, 164 (5th Cir. 1992). Without spe culating unnecessarily as to the interstate commerce effects flowing from the successful release of anthrax spores, we conclude

that Guevara’s threat actually affected interstate commerce. The federal building was shut

down for a day and a half; nume rous federal

agencies, including the DEA, experienced delay; and Judge Robin so n’s court (which handled diversity suits) was interrupted . These

circumstances are more than enough for us to

affirm on sufficiency of the evidence review.

IV.

A.

Gue vara argues that his WMD conviction

was incorrectly cl assified as a “crime of violence” under U.S.S.G. § 4B1.1. Before B ooker , we reviewed a district court’s interpretation and application of the sentencing gui delines de no vo. See U

nited States v. Charles

, 301 F.3d 309, 312-13 (5th Cir. 2002) (en

banc). Because these are questions of law, the

sa me standard should control in the wake of

Booker

. “[W]hen a district court has imposed

a sentence under the Guilelines, this court continues after B ooker to review the district

court’s interpretat io n and application of the

Guidelines de novo.” U

nited Stat es v. Villegas

, 404 F.3d 355, 359 (5th Cir. 2005) (per

curiam). 5 Guevara also argues that th e “substantially

affected” language is invited error. We are uncertain precisely what to make of this argument. The

district court issued the jury instruction, and the

government merely failed to object. Moreover, the

government does not “complain” of the error.6 B.

The guidelines define a “crime of violence”

as any offense under federal or state law that is

punishable by imprisonment for more than one

year that

(1) has as an element the use, attem pted

use, or threatened us e o f physical force

against the person of another, or

(2) is the burglary of a dwell ing, arson, or

extortion, involves the use of explosives or

otherwise involves conduct that presents a

ser io us potential risk of physical injury to

another.

U.S.S.G. § 4 .B1.2(a). Because Guevara’s

conviction qualifies as a “crime of violence”

under § 4B1.2(a)(1), we express no opinion as

to whether it would qualify under § 4B1.2-

(a)(2).

Section 2332a contains, as an element, the

threate ned use of a weapon of mass destruction. The jury was instructed, in relevant part,

that to convict, it must find tha t “[Guevara],

without lawful authority, knowingly and intentionally threatened to use a weapon of mass

destruction” and that “the nature of the threat

was to use the weapon against a third person

within the United States.” In other words, the

jury instructions s t at e precisely the requirements of the statute.

Given that we uphold the “threat” status of

Gueva ra’s anthrax hoax under R eynolds

, the

only determination we need make is whether,

under the guidelines, WMD’s are instruments

of physical force withi n t he meaning of

§ 4B1.2(a)(1); we have little problem concluding that they are. We need not look to the indictment, the facts, or anything other than the

statute to determine whether § 2332a contains

an element that qualifies Guevara’s crime as a crime of violence under the guidelines.

Other circuits have determined that mailing

a threatening communic ation under § 876

constitutes a crime of violence under § 4B1.2-

(a)(1). In U

nited States v. Left Han d Bull

, 901 F.2d 647, 649 (8th Cir. 1990), the court

reasoned that, because of § 876’s requirement

that the communication threaten to injure the

addressee or another third party, § 4B1.2(a)(1)

was satisfied.

Reachin g the contrary conclusion, moreover, would require us to say that the use of

WMD’s does not involve physical force. Guev ara addresses this argument in a single se n

tence of his opening brief: “Here, none of the

o ffenses speak to the use of ‘force’ or e ven

threatened a t tempted force.” We reject that

illogical reaso n

ing and conclude, categorically,

that the WMD’s at issue here involved physical force within the meaning of § 4B1.2(a)(1). 6

V.

Guevara argues that, under Blakely

, the district court sentenced him unconst itutionally according to facts not found by a jury and to

which he did not stipulate. The Court directly

addressed this issue in Booker

.

Based so lely on the facts adduced in the

jury findings, the maximum sent ence the distr ict court could assess against Guevara was

seventy-eight months. 7 Guevara asserts that

6 We decline to engage in the more complicated

analysis under § 4B1.2(a)(2), which under the

“otherwise clause” would require us to consider

risk posed by hypothetical conduct.

7 Guevara’s pre-adjustment maximum pursuant

to the guidelines is cal culated using the base offense level of 20 as found in the PSR. Coupled

(continued...)7

the court sh o uld not have increased the sentence by deciding that he (1) c ommitted a

crime of v io lence; (2) substantially disrupted

governmental functions; an d (3) chose his

victim on account of her governmental status.

On the basis of those circumstances, the court

increased Guevara’s maximum available sentence under the guidelines to life imprisonment

for the § 2332a violation; the court then proceeded to impose that maximum sentence.

In Booker

, the defendant was charged with

possession with intent to distribute at least fift y

grams of crack. S ee Booker

, 125 S. Ct. at

746. Based on facts the court found by a preponderance of the evidence at a post-tri al sentencing hearing, it imposed a sentence exceedi ng that which it could have imposed on the

basis of the facts proven to the jury beyond a

reasonable doubt. 8 See id

.

The C o urt made several key holdings in Booker . First, it found that mandatory sentencing based on facts not found by the jury

violates the Sixth Amendment. S ee id. at 749-

50. Second, it severed and excised the provisions that rendered the guidelines unconstitutional, specifically those making them mandatory

. 9 S ee id. at 759-61. Finally, it instructed

lower courts to apply ordinary prudential doctrines in determini ng whether the imposed

sentence r equires a vacatur and remand. S ee

id. at 769.

Based on these directi ves, (1) the district

court’s mandatory sentence based on ce rtai n

facts found exclusively in the sentencing proceeding vio lates the Sixth Amendment;

(2) Guevara f

ailed to preserve the error adequately, so his sentence is subject to plain error review; and (3) the error did not affect his

substantial rights as required under the plain

error standard. We therefo re affirm the sentence.

A.

There is no Sixth Amendm e nt violation

with respect to post-trial consideration of car eer offender status. According to U.S.S.G.

§ 4B1.1(a),

A defendant is a career offender if (1) the

defendant was at least eighteen years old at

the time t he defendant committed the instant offense of conviction; (2) the instant

o ffense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at

least two prior felony convictions of either

acrime of violence or a controlled substance offense. 7 (...continued)

with a criminal history C ategory V, this offense

level yields a range of 63-78 months.

8 Having heard evidence that he had distributed

92.5 grams of crack, the jury found Booker guilty

of a stat utory offense carrying a penalty of 10

years to life in

prison. S ee Booker

, 125 S. Ct. at

746. Based on his criminal history and the quantity of drugs found by the jury, the guidelines stipulate a sentencing range of 210-262 months. S ee id

. In a post-conviction sentencing heari ng the court

found, acc or ding to a preponderance of the evidence, that Booker had possessed an additional 566

grams of crack and was guil ty of obstructing

justice. See id. That additional factfinding yielded, accor ding to the guidelines, a sentence of 360

months to life in prison

. See id . The court imposed a 30-year sentence, compared to d to the 21

years and 10 months that could have been meted on

t he basis of facts proven to the jury beyond a

reasonable doubt. See id. 9 Specifically, the decision severs and excises

18 U.S .C. § 3553(b)(1) (Supp. 2004) and

§ 3742(e) (main ed. and Supp. 2004).8

The question Booker answered in the affirmative was “[w]he t her the Sixth Amendment is

violated by the imposition of an enhanced

sentence under the United State s Sentencing

Guidelines based on the sentencing judge’s

determination of a f

act (other than a prior

conviction) that was not found by the jury or

admitted by the defendant

. ” B ooker

, 125 S.

Ct. at 747 n.1 (emphasis added). Career offender st at us is not “a sentencing judge’s determination of a fact other than a prior conviction.” Aside from Guevara’s age (a fact to

which he stipulated in his competency report),

the deter minations made in the course of a

career offender classification are all questions

of law; in other words, they are precisely the

determinations the above-quoted italicized

language exempts.

Thus, Booker explicitly excepts from Sixth

Amendment analysis the third component of

the crime of violence determination, the fact of

two prior convictions. 10 The remaining determination necessary to classify a defendant as a

career offender, th en, is whether the current

conviction constitutes a “crime o f violence.”

That determination is in turn made pursuant to

§ 4B1.2(a)-(b). Because Guevara’s career offender status depends only on crime-of-violence (rather than controlled substance) convictions, we focus exclusively on § 4B1.2(a).

Section § 4B1.2 ( a)(1) instructs district

courts to treat the offense o f conviction as a

crime of violence if it “has as an element t he

use, attempted use, or threatened use of physical force against the person of another.” By

definition, then, a court cannot classify an off ense as a crime of violence if a jury has not

already found beyond a reasonable doubt the

element of the offense on which that determination is predicated.

Section 4B1.2(a)(2) instructs courts to consider the instant offense a crime of violence if

it is “burglary of a dwelling, arson, or extortion, involve s use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to another .” Our

caselaw interpreting th a t provision has categorically forbidden courts from look ing beyond the statute and the indictment in making

this decision. 11 Therefore, as is the case with

§ 4B1.2(a)(1), under § 4B1.2(a)(2) the se n

tencing court cannot base its crime-of-violence

determinatio n on anything beyond what is

present in t he statute or alleged in the indictment, elements as t o which, to convict, the

jury must have found evidence beyon d a reasonable doubt in any event. As a consequence,

the crime-of-violence determination is made

exclusively pursuant to fact s found by a jury,

and Guevara’s cla ssification as a career offender is not in violation of the Sixth Amendment under Booker

.

B.

Guevara urges that two other judicially10 One might argue that whereas Booker speaks

in terms of the “fact” of prior convictions, the

guidelines career offender dete r mination involves

the “character” of those convictions. To classify

a defendant as a career offender under the guidelines, a court must determine that he has two prior

felony convictions, both of which must be either (1)

cr imes of violence or (2) controlled substance

co nvictions meeting certain specifications. Though

we express no opinion on the factual versus legal

char acter of finding the controlled substance

violations, characterizing an offense as a crime of

violence is a purely legal determination, as we will

explain. 11 See

, e.g.

, United States v . Calderon-Pena

, 383 F.3d 254 ( 5 th Cir. 2004) (en banc), cert. denied , 125 S. Ct. 932 (2005).9

found facts violated his Sixth Amendment

rights: the findings that he substantially disrupted g o vernmental functions and that he

chose h is victim on account of her governm ental status. Guevara failed to raise this issue at the sentencing hearing, and ultimately

did so only in a supplemental appella te bri ef

after the Court decided Blakely

.

In United States v. Rios-Quintero

, 204 F.3d

214 (5th Cir. 2000), we addressed what standard of review to apply where a party briefed

a claim on appeal but had not raised it in the

district court because the Supreme Court had

not yet issued the decisio n underlying the

claim it self. 12 We concluded that the plain error standard of review was nonetheless appropriate for claims fir st raised on appeal where

the relevant Supreme Court case was decided

during the pendency of that appeal. I d. at 215.

We thus apply a plain error standard to Guevara’s Sixth Amendment claim.

Under plain error review, to correct an error no t properly preserved, we must find

(1) error (2) that is plain and (3) aff e cts subst ant ial rights. 1 3 “If all three conditions are

met an appellate cour t may then exercise its

discretion to notice a forfeited error but only if

(4) the error seriously affects the fairness, integrity, or public r eput ation of judicial

procee dings.” U

nited States v. Cotton

, 535

U.S. 625, 631 (2002). S ee also United States

v. Mares

, 402 F.3d 511, 520 (5th Cir. 2005)

(reiterating that this is the applicable standard

in Booker cases where the e rror is not preserved), petition for cert. filed (U.S. Mar. 31,

2005) (No. 04-9517).

C.

1.

Under Booker , the Sixth Amendment was

violated when the district court mandatorily

adjusted Guevara’s sentence on the basis of

the remaining two questions of fact not found

by a jury beyond a reasonable doubt. With respect to the first step in our plain error review,

therefore, there was error. S ee Mares

, id. at

520-21.

With respect to the second step, we assess

whether an error is “plain ” o r “obvious” by

reference to the law as it exi s ts at the time of

appellate consideration. S ee Cotton

, 535 U.S.

at 631-32). Again, B ooker left no doubt as to

the status of the error involved in mandatorily

sentencing defendants p ursuant to judge-found

facts: Any case no w on appeal, in which the

court made factual findings pursuant to the

guidelines, and where those findings were not

implicit in t he verdict or admitted by the defendant, involves a constitutional error that is

plain under Blakely and Booker

. S ee Mares,

402 F.3d at 521.

2.

The pivotal issue in Guevara ’s Sixth

Amendment claim is therefore whether the obvious sentencing error affected his substantial

rights. To have done so, it must have affected

the outcom e of the proceeding. I d. The defendant bears the burden of showing a probabilit y that the error undermin es co nfidence in

the outcom e. Id.

3.

The base offense leve l for violation of

§ 2332a(a)(2 ) is 20. S ee U.S.S.G. § 2M6.1.

Guevara’s total offense level was 27 after upward adjustments for substantial disruption of 12 The Supreme Court cas e at the heart of the

tardy party’s claim in Rios-Quintero was Jones v.

United States , 526 U.S. 227 (1999).

13 See United States v. Olano

, 507 U.S . 725,

732 (1993); United States v . Calverley , 37 U.S.

160, 162 (5th Cir. 1994) (en banc).10

public, governmental, or business functions or

services (+4), see id. § 2M G.1(b)(3)(i ), and

because the vic t im was a government officer

or employee and the offense of conviction was

motivated by such status (+3), see id. § 3A1.2-

(a)(1)(A), (2).

According to § 4B1.1(b), the criminal history category of any career offender is VI. Also according to § 4B1.1(b ), any career offender who is convicted of an offense with a

maximum sentence of life under t he substantive statute is assigned an offense level of 37.

Based on a criminal history category of VI and

a total offense level of 37, Guevara’s guideline

range is 360 months to life.

The rub is that the judge’s post-trial factfinding did not alter Guevara’s career offender

status, and if Guevara remain s a career offender convicted under § 2332a, he would be

in the same guideline range irrespective of

whether the court found additional f acts by a

preponderance of the evidence. His career offender status yields a criminal history category

of VI and a total offense level of 37 without

regard to whether a judge or jury found that he

(1) disrupted governm

e ntal functions and

( 2) t argeted his victim on the basis of her

governmental status.

We summarize this analysis as follows:

Even if the gui delines were mandatory and

Guevara could be sentenced only according to

elements found by a jury beyond a reasonable

doubt, hi s guidelines range would remain unchanged. As B ooker instructs, however, the

guidelines are merely “advisory.” Because of

Guevara’s classifi cat ion as a career offender,

the g uidelines would “advise” the same sentencing range irre s pective of whether the adjustment circumstances existed.

Finally, because the district court sentenced G uevara to the maximum allowable punis h

ment (life) und e r both the guidelines and

§ 2332a, and because the maximum sentence

the court can impose, even post- B ooker

, remains limit

ed to life by the terms of § 2332a,

there is no reason to believe that the sentencing court would sentence Guevara any differently merely because t he guidelines are advisory.

This analysis is reinforced by Mares

, which

states that “the pertinent quest ion is whether

[the defendant] demonstrated that the sentencing judge 

### SS

sentencing under an advisory

sch eme rather than a mandatory one 

### S S would

have reached a significan t ly different result.”

Mares , 402 F.3d at 521. “[T]he defendant

rather than the government bears the burden of

persuasion with respect to prejudice” in these

determinations. Id. Here, as in Mares

,

[w]e do not know what the trial judge

would have done had the Guideline s been

advisory. Except for the fact that the sentencing judge imposed the statutory ma x imum sentence

. . ., there is no indication in

the record from the sentencing judge’s

remarks or otherwise that gives us any clue

as to whet her [the judge] would have

reached a different conclusion.

Id. at 522. And again, as in M ares

, “the defendant cannot carry his burden of demonstrating that the result would have likely been different had the judge been sentencing under the

Bo o ker advisory regime rather than the preBooker mandatory regime [, so] the defendant

cannot satisfy the third prong of the plain error

test.” I d. We need not address Guevara’s arguments regarding the other two enhancements, because he points to nothing in the record suggesting that they created a prejudicial

Booker error.11

The judgments of conviction and sentence

are AFFIRMED.