United States Court of Appeals

Fifth Circuit 

## FILED

June 3, 2005

Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 03-51163

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ICHAEL 

### E DWARD 

### T UBBS



### , A LSO K NOWN AS M ICHAEL T UBBS

,



### Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Western District of Texas



### m W:03-CR-69-1

______________________________2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before S MITH , D E M OSS , and S TEWART

, Circuit Judges.

P ER C URIAM : *

This court affirmed the sentence of Michael

Tubbs. U nited States v. Tubbs

, 96 Fed. Appx. 257 (5t h Cir. 2004) (per curiam). The Supreme Court vacated and remanded for further

consideration in light of United States v. Booker , 125 S. Ct. 738 (2005). T ubbs v. United

States

, 125 S. Ct. 1054 (2005). We requested

and rece ived supplemental letter briefs addressing the impact of Booker

.

Tubbs clai ms t here is error under B ooker

because th e district court, rather than a jury,

made a finding regarding the quantity of drugs

attributable to him. Although Tubbs did object

t o t he court’s inclusion of the so-called

“bones” in the drug quantity, he did not raise

a Sixth Amendment objection or complain that

the quantity must be decided by a jury if not admitted to by the defendant.

The government correctl y contends the plain error standard of review should apply because Tubbs did not preserve a Sixth Amendment error. S ee United States v. Mar es , 402

F.3d 511, 520 (5th Cir . 2005), p etition for

cert. filed (Mar. 31, 2005) (No. 04-9517).

“An appellate court may not correct an error the defendant failed to raise in the d istrict

court unless there is ‘(1) error, (2) that is plain,

and (3) that affects substantial right s.’” I d. (quotin g U

nited States v. Cotton

, 535 U.S. 625, 631 (2002)).

The government seems to acknowle dge that

there is plain error, so the first two prongs are satisfied. To show that his substantial rightsare affected, Tubbs must “point[] to . . . evidence in the record suggesting that the district

court would have imposed a lesser sentence

under an advisory guidelines system.” U nited

States v. Taylor

, No. 03-1 0167, 2005 U.S. App. LEXIS 8701, at *4 (5th Cir. May 17, 2005) (per curiam) (citations omitted).

I n his supplemental brief, Tubbs “admits

that there is nothing on this record that indicates that the sentencing judge

. . . was dissatisfied about the application of the Guidelines in

this particul ar case

. ” Tubbs contends, however, that “there is evidence of his dissatisfact ion with the entire scheme overall ,” as al

legedly shown

by t he fact that the judge was

“one of the first District Judges in the Nation

to declare the sentencing Guidelines unconstitutional in the wake of Blakely .” This is an inadequate show i ng “that the sentencing judge 

### SS sentencing under an ad visory scheme

rather than a ma ndatory one 

### S S would have

reached a significant ly different result.”

Mares , 402 F.3d at 521.

The judgment of sentence is AFFIRMED.

* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent exc ept under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.