* 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opinion should not be published and is not precedent except under the limited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.

1543 U.S. 220 (2005).

2See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005). 

United States Court of Appeals

Fifth Circuit

FILED

December 7, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30487

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN MICHAEL MCCONNELL,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:04-CR-50083-ALL

--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

John Michael McConnell challenges his sentence for

misapplication of funds by a bank employee under 18 U.S.C. § 656.

Citing our precedent under United States v. Booker,

1 McConnell

asserts that the district court erred by increasing his sentence

based upon facts that were neither proven to a jury nor admitted by

him. Because he did not raise the objection below, we review this

issue for plain error.2 McConnell must demonstrate (1) an error,
No. 06-30487

-2-

3Id.

4Id.

5See Mares, 402 F.3d at 520-21.

6Mares, 402 F.3d at 521.

(2) that is plain, and (3) that affects his substantial rights.3

If these conditions are satisfied, we may exercise our discretion

to correct the error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”4

(internal quotation marks and citation omitted).

The district court increased McConnell’s sentence based upon

a factual finding and under the belief that the Sentencing

Guidelines were mandatory, so the error is plain.5 However,

McConnell has failed to show that “the sentencing judge--sentencing

under an advisory scheme rather than a mandatory one--would have

reached a significantly different result.”6

McConnell’s best evidence is from the sentencing hearing,

where the district court remarked:

If I sentence you for less than the guidelines, under the

present system, [the AUSA] has to report me to the

Attorney General. And the Attorney General has to report

me to the chairman of the House Judiciary Committee and

Senate Judiciary Committee and say that Judge Stagg

departed downward without legal authority.

However, the very same Judge, in denying McConnell’s motion for

release pending appeal, rejected his Booker arguments, reasoning

that “there is no indication that McConnell’s sentence would have

been different under an advisory guidelines scheme as opposed to a
No. 06-30487

-3-

7United States v. Smith, 442 F.3d 868, 871 (5th Cir. 2006).

8See Mares, 402 F.3d at 520-21.

mandatory one.” We hold that this most recent statement by the

district court is dispositive of the substantial-rights question.

This holding follows Smith, where we held that such a statement,

made in the context of a district court’s denial of a § 2255 motion

to vacate, indicated “the indisputable message” that “the court

stands by its original sentence, even after Booker.”7 Because

McConnell has failed to show that the error affected his

substantial rights, he cannot demonstrate that the district court

committed plain error.8

The judgment of the district court is AFFIRMED.