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

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANK PACO GUEVARA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

Before HIGGINBOTHAM, SMITH, and

BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Frank Guevara challenges his conviction

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

a weapon of mass destruction (“WMD”). He

also appeals his classification as a career offender under the sentencing guidelines. Finally, he challenges his sentence in light of

Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 125 S.
2

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

we affirm.

I.

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

mailed a letter to United States District Judge

Mary Lou Robinson. An employee at the

court’smaildepositoryretrieved the letter and,

recognizing that it wasfroman inmate, opened

the envelope, which contained a white, powdery substance that got onto the employee’s

fingers. The letter stated:

Mary Lou Robinson,

I am sick and tired of your games[.] All

[A]mericans 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 of time. Local police

with hazardousmaterialstraining, 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 courtroom. The federal building

housed numerous 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 violation of

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

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

§ 876. During trial, Guevara moved for judgment of acquittal at the close of the government’s case and at the close of all of the evidence. His motions were denied, and the jury

convicted him on both counts.

The presentence report (“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 least

two convictionsfor 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

not 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. See United States

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

When reviewing the sufficiency of the evidence, we consider “‘whether a reasonable trier of fact could have found that the evidence

established the essential elements of the crime

beyond a reasonable doubt.’” United States v.

Cathey, 259 F.3d 365, 368 (5th Cir. 2001)

(quoting United States v. Ortega 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 from 27 to 37, and his

criminal history category was raised from V to VI.

These adjustments dictated a sentencing range of

360 months to life. 
3

§ 2332a provides in relevant part:

A person who, without lawful authority,

uses, threatens, or attempts or conspires to

use, a weapon of mass destruction . . .

(2) against any person within the United

States, and the results 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 imprisoned for any

term of years or for life . . . .

When construing a criminal statute, we are

bound by the plain and unambiguous meaning

of itslanguage. See 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. See id. We must seek to give every

word in the statute some operative effect. See

id.

2.

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

encompassed 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 future. There are plain-language and

legislative historyargumentsthat, in a vacuum,

might lend credence to Guevara’s interpretation.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 credible support for a

definitionof“threat” thatrequiresreference

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 tendency to create apprehension that

[the] 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’stelephone operator that he had just

dumped anthrax into the air conditioning

system. Id. at 405. Company 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 inquestionconveyed onlythe completion

of a past act. Citing United States v. Myers,

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

§ 2332a’sthreat 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 Reynolds foreclosesthisinterpretation,

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 evidentiary

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 instruction de novo where there isthe possibility

that the jury instruction misstated an element

of the crime, because that is an issue of statutory construction. See 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 expressing

an intention to do an act which under the

circumstanceswould cause apprehensionin

a reasonable person, as distinguished from

idle or carelesstalk, exaggeration, orsomething said in a joking manner. It is not

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

threat made.

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

here and in Reynolds, a person can violate

§ 2332a merely by making a statement about

completed action, and if, as we held in Reynolds, that threat need not be credible, there is

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

III.

Section 2332a requires 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 that, 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, without lawful authority, uses,

threatens, or attempts to use, a weapon of mass

destruction . . . (2) against any person within

the United States, and the results 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 imprisoned for any term of years or

for life . . . .

Guevara would distribute the phrase “to use” upstream 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 alternative, which is to decline to distribute “to use” upstream. This alternative construction would leave the statute an unintelligible

law punishing any “personwho, without lawful authority . . . threatens . . . a weapon of mass destruction.” 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 Reynolds

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 instructed the jury

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

to find that the WMD, if used as threatened,

would have substantially affected interstate

commerce; the statute requires only that the

threat, if carried out, would have some effect,

not necessarily a substantial one. The court

instructed that “commerce”meant the “flow of

goods, merchandise, money, or other property

between states.” The interstate commerce

element was stated properly in the indictment.

Guevara argues that because the instructions mistakenly stated, without government

objection, the degree of effect required on

commerce, the “substantially affected” language became “law of the case,” and the government had to prove 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 court held that

where a misstated element is included in the

jury instruction, but not in the indictment, the

misstated element does not necessarilybecome

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

albeit in an unpublished opinion. See United

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

243, 245 (5th Cir. 2004) (unpublished), vacated on other grounds, 125 S. Ct. 999

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

to the effect that the “substantially affected”

language 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 patently erroneous and

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

B.

We reviewthe interstate commerce element

determination for sufficiency of the evidence

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

the essential elements of the offense beyond a

reasonable doubt. See United States v. Daniel, 957 F.2d 162, 164 (5th Cir. 1992). Without speculating 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; numerous federal

agencies, including the DEA, experienced delay; and Judge Robinson’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.

Guevara argues that his WMD conviction

was incorrectly classified as a “crime of violence” under U.S.S.G. § 4B1.1. Before Booker, we reviewed a district court’s interpretation and application of the sentencing guidelines de novo. See United States v. Charles,

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

banc). Because these are questions of law, the

same standard should control in the wake of

Booker. “[W]hen a district court has imposed

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

court’s interpretation and application of the

Guidelines de novo.” United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005) (per

curiam).

5 Guevara also argues that the “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, attempted

use, or threatened use of physical force

against the person of another, or

(2) is the burglary of a dwelling, arson, or

extortion, involves the use of explosives or

otherwise involves conduct that presents a

serious 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

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

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

without lawful authority, knowinglyand 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 state precisely the requirements of the statute.

Given that we uphold the “threat” status of

Guevara’s anthrax hoax under Reynolds, the

only determination we need make is whether,

under the guidelines, WMD’s are instruments

of physical force within the meaning of

§ 4B1.2(a)(1);we have little problemconcluding 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 communication under § 876

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

(a)(1). In United States v. Left Hand 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 anotherthird party, § 4B1.2(a)(1)

was satisfied.

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

WMD’s does not involve physicalforce. Guevara addresses this argument in a single sentence of his opening brief: “Here, none of the

offenses speak to the use of ‘force’ or even

threatened attempted force.” We reject that

illogicalreasoning and conclude, categorically,

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

V.

Guevara arguesthat, under Blakely, the district courtsentenced himunconstitutionally according to facts not found by a jury and to

which he did not stipulate. The Court directly

addressed this issue in Booker.

Based solely on the facts adduced in the

jury findings, the maximum sentence the district 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 maximumpursuant

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

(continued...)
7

the court should not have increased the sentence by deciding that he (1) committed a

crime of violence; (2) substantially disrupted

governmental functions; and (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 guidelinesto life imprisonment

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

In Booker, the defendant was charged with

possessionwith intent to distribute at least fifty

grams of crack. See Booker, 125 S. Ct. at

746. Based on facts the court found by a preponderance of the evidence at a post-trialsentencing hearing, it imposed a sentence exceeding that which it could have imposed on the

basis of the facts proven to the jury beyond a

reasonable doubt.8 See id.

The Court made several key holdings in

Booker. First, it found that mandatory sentencing based on facts not found by the jury

violatesthe Sixth Amendment. See id. at 749-

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

9

 See id. at 759-61. Finally, it instructed

lower courtsto apply ordinary prudential doctrines in determining whether the imposed

sentence requires a vacatur and remand. See

id. at 769.

Based on these directives, (1) the district

court’s mandatory sentence based on certain

facts found exclusively in the sentencing proceeding violates the Sixth Amendment;

(2) Guevara failed 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 therefore affirm the sentence.

A.

There is no Sixth Amendment violation

with respect to post-trial consideration of career 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 the defendant committed the instant offense of conviction; (2) the instant

offense 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

a crime of violence or a controlled substance offense. 

7

(...continued)

with a criminal history Category 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 statutory offense carrying a penalty of 10

years to life in prison. See Booker, 125 S. Ct. at

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

In a post-conviction sentencing hearing the court

found, according to a preponderance of the evidence, thatBooker had possessed an additional 566

grams of crack and was guilty of obstructing

justice. See id. That additional factfinding yielded, according 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 beenmeted on

the 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]hether the Sixth Amendment is

violated by the imposition of an enhanced

sentence under the United States Sentencing

Guidelines based on the sentencing judge’s

determination of a fact (other than a prior

conviction) that was not found by the jury or

admitted by the defendant.” Booker, 125 S.

Ct. at 747 n.1 (emphasis added). Career offender status 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 determinations 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, then, is whether the current

conviction constitutes a “crime of violence.”

That determination isin 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 of conviction as a

crime of violence if it “has as an element the

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

definition, then, a court cannot classify an offense 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. 

Section4B1.2(a)(2)instructs courtsto consider the instant offense a crime of violence if

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

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

caselaw interpreting that provision has categorically forbidden courts from looking 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 sentencing court cannot base its crime-of-violence

determination on anything beyond what is

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

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

the crime-of-violence determination is made

exclusively pursuant to facts found by a jury,

and Guevara’s classification 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 determination 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 whichmust be either(1)

crimes of violence or (2) controlled substance

convictions meeting certain specifications. Though

we express no opinion on the factual versus legal

character 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 (5th 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 governmental functions and that he

chose his victim on account of her governmental status. Guevara failed to raise this issue at the sentencing hearing, and ultimately

did so only in a supplemental appellate brief

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 decision underlying the

claim itself.12 We concluded that the plain errorstandard of review was nonetheless appropriate for claims first raised on appeal where

the relevant Supreme Court case was decided

during the pendency ofthat appeal. Id. at 215.

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

Under plain error review, to correct an error not properly preserved, we must find

(1) error (2) that is plain and (3) affects substantial rights.13

 “If all three conditions are

met an appellate court may then exercise its

discretion to notice a forfeited error but only if

(4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Cotton, 535

U.S. 625, 631 (2002). See 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 error 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. See Mares, id. at

520-21.

With respect to the second step, we assess

whether an error is “plain” or “obvious” by

reference to the law as it exists at the time of

appellate consideration. See Cotton, 535 U.S.

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

the status of the error involved in mandatorily

sentencing defendants pursuant to judge-found

facts: Any case now on appeal, in which the

court made factual findings pursuant to the

guidelines, and where those findings were not

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

plain under Blakely and Booker. See Mares,

402 F.3d at 521.

2.

The pivotal issue in Guevara’s Sixth

Amendment claimistherefore whether the obvious sentencing error affected his substantial

rights. To have done so, it must have affected

the outcome of the proceeding. Id. The defendant bears the burden of showing a probability that the error undermines confidence in

the outcome. Id.

3.

The base offense level for violation of

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

Guevara’s total offense level was 27 after upward adjustments for substantial disruption of

12 The Supreme Court case 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 businessfunctions or

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

because the victim was a government officer

or employee and the offense of conviction was

motivated bysuch 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 the 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 remains a career offender convicted under § 2332a, he would be

in the same guideline range irrespective of

whether the court found additional facts 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 governmental functions and

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

governmental status.

We summarize this analysis as follows:

Even if the guidelines were mandatory and

Guevara could be sentenced only according to

elements found by a jury beyond a reasonable

doubt, his guidelines range would remain unchanged. As Booker instructs, however, the

guidelines are merely “advisory.” Because of

Guevara’s classification as a career offender,

the guidelines would “advise” the same sentencing range irrespective of whether the adjustment circumstances existed.

Finally, because the district court sentenced

Guevara to the maximum allowable punishment (life) under both the guidelines and

§ 2332a, and because the maximum sentence

the court can impose, even post-Booker,

remainslimited to life by the terms of § 2332a,

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

This analysisisreinforced by Mares, which

states that “the pertinent question is whether

[the defendant] demonstrated that the sentencing judgeSSsentencing under an advisory

scheme rather than a mandatory oneSSwould

have reached a significantly different result.”

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

rather than the government bearsthe 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 Guidelines been

advisory. Except for the fact that the sentencing judge imposed the statutory maximum sentence . . ., there is no indication in

the record from the sentencing judge’s

remarks or otherwise that gives us any clue

as to whether [the judge] would have

reached a different conclusion.

Id. at 522. And again, as in Mares, “the defendant cannot carryhis burden of demonstrating that the result would have likely been different had the judge been sentencing under the

Booker advisory regime rather than the preBooker mandatory regime [, so] the defendant

cannot satisfy the third prong ofthe plain error

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

Booker error.
11

The judgments of conviction and sentence

are AFFIRMED.