* Pursuant to 5 TH 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should not be published and is not precedent except under the limited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 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 24, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30676

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH HUNTER,

Defendant-Appellant.

______________________ Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 02-CR-281-ALL-I

______________________

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM: *

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Keith Hunter challenges his sentence on grounds that it was

imposed in violation of his Sixth Amendment right to jury trial.

We affirm.

Hunter plea ded guilty to three counts of trafficking in

cocaine, heroin and marijuana. He was assessed a base offense

level of thirteen and a criminal history category of IV, resulting

in a Guideline range of 33 to 41 months. At sentencing, the1 United States v. Hunter

, No. 03-30676, 2004 WL 1598773 (5th Cir. July 19,

2004) (unpublished).

2 Hunter v. United States , 125 S. Ct. 1056 (2005).

3 125 S. Ct. 738 (2005).

2 district court found that Hunter’s “criminal history category does

not adequately reflect the seriousness of his past criminal conduct

of the likelihood that he will c ommit other crimes.” The court

then reviewed Hunter’s numerous past drug-related convictions and

prior arrest and concluded that a sentence of 87 months’

imprisonment was appropriate.

Hunter appealed his sentence on grounds that there was no

valid basis for the district court’s upward departure, and that the

degree of the departure was excessive. We held that the district

court erred in relying on Hunter’s prior arrest record, but found

this error to be harmless in light of the court’s further reliance

on the similarity of Hunter’s prior convictions to the present

offense, his failure to satisfy parole requirements, and the lack

of a deterrent effect of prior le sser punishments. 1 The Supreme

Court vacated and remanded 2 for further con sideration in light of

United States v. Booker

. 3 We requested supplemental letter briefs.

On remand, Hunter argues that his senten ce is illegal under

Booker in three ways. First, he claims that the district court

calculated his base offense level using marijuana quantities that

were neither charged in the indictment nor admitted as part of his

guilty plea. Second, he contends that the district court erred by4 See United States v. Bringier , 405 F.3d 310, 316 (5th Cir. 2005).

5 See United States v. Mares , 402 F.3d 511, 520 (5th Cir. 2005).

6 United States v. Infante , 404 F.3d 376, 394-95 (5th Cir. 2005) (citing

United States v. Olano , 507 U.S. 725, 732-37 (1993)).

7 Mares

, 402 F.3d at 520 (quoting United States v. Cotton

, 535 U.S. 625,

631 (2002)).

3 departing upward on the basis of judicial fact-findings regarding

t he nature of his prior convictions. Third, he urges that the

district court erred by treating the Sentencing Guidelines as

mandatory.

Booker provides that when a judge increa ses a defendant’s

sentencing range under a mandatory Guidelines regime based on facts

not found by a jury o r admitted by the defendant, the resulting

sentence violates the defendant’s Sixth Amendment right to a jury

trial. 4 Because Hunter did not object to his sentence on Sixth

Amendment grounds before the district court, our review is for

plain error only. 5 “We find plain error when: (1) there was an

error; (2) the error was clear and obvious ; and (3) the error

affected the defendant’s substantial rights.” 6 “‘If all three

conditions are met an appellate court may then exercise its

discretion to not ice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” 7

With respect to Hunter’s first argument, we find that the

district court committed plain error when it enhanced his8 See Infante , 404 F.3d at 394; Mares , 402 F.3d at 520.

9 Infante , 404 F.3d at 395.

10 Moreover, to the extent that Hunter seeks to revive his challenge to the

district court’s application of the Guidelines in assessing the upward departure,

we find the se ntence to be reasonable for the reasons given by the district

court. S ee United States v. Smith

, No. 03-10171, 2005 WL 1663784 (5th Cir. July

18, 2005) (reviewing departure decisions post- Booker for reasonableness).

4 Guidelines range based on facts not admitted by him or found by a

j ury. 8 However, Hunter has failed to show “with a probability

sufficient to undermine confidence in the outcome, that if the

judge had sentenced him under an advisory sentencing regime rather

than a mandatory one, h e would have received a lesser sentence.” 9

Here, the judge found that even with the enhancement, Hunter’s

Guidelines rang e failed to reflect the seriousness of his prior

c riminal record and the likelihood that he would recidivate.

Further, the court explicitly found that a sentence of 87 months’

imprisonment was “appropriate.” There is nothing in the record to

indicate that the court would have arrived at a lesser sentence had

it started from a lower “point of departure.”

Hunter’s second point of error is likewise unavailing.

Although the court sentenced Hunt er under a mandatory Guidelines

regime, it exercised its discretion in crafting a sentence that it

believed would be appropriate in light of the specific nature of

Hunter’s past record. There is nothing in the record to suggest

that the court would have given a lesser sentence under an advisory

Guidelines regime. 10 Lastly, to the extent that Hunter’s third

point of error implies that sentencing under a mandatory Guidelines11 See United S tates v. Malveaux , 411 F.3d 558, 560 n.9 (5th Cir. 2005).

5 regime constitutes structural error, or that Booker error should be

presumed prejudicial, these arguments have been foreclosed by our

precedent. 11

Based on the foregoing, we REINSTATE our prio r opinion

affirming the judgment of the district court.