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

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m 03-51163

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL EDWARD TUBBS,

ALSO KNOWN AS MICHAEL TUBBS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

m W:03-CR-69-1

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2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH, DEMOSS, and STEWART,

Circuit Judges.

PER CURIAM:

*

This court affirmed the sentence ofMichael

Tubbs. United States v. Tubbs, 96 Fed. Appx.

257 (5t h Cir. 2004) (per curiam). The SupremeCourt vacated and remanded for further

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

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

and received supplemental letter briefs addressing the impact of Booker.

Tubbs claims there is error under Booker

because the district court, rather than a jury,

made a finding regarding the quantity of drugs

attributable to him. Although Tubbs did object

to the 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 correctly contends the

plain errorstandard ofreview should apply because Tubbs did not preserve a Sixth Amendment error. See United States v. Mares, 402

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

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

“An appellate court may not correct an error

the defendant failed to raise in the district

court unlessthere is‘(1) error, (2) that is plain,

and (3) that affects substantial rights.’” Id.

(quoting United States v. Cotton, 535 U.S.

625, 631 (2002)). 

The governmentseemsto acknowledge that

there is plain error, so the first two prongs are

satisfied. To show that his substantial rights

are 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.” United

States v. Taylor, No. 03-10167, 2005 U.S.

App. LEXIS 8701, at *4 (5th Cir. May 17,

2005) (per curiam) (citations omitted). 

In his supplemental brief, Tubbs “admits

that there is nothing on this record that indicates that the sentencing judge . . . was dissatisfied about the application ofthe Guidelinesin

this particular case.” Tubbs contends, however, that “there is evidence of his dissatisfaction with the entire scheme overall,” as allegedly shown by the 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 showing “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.

The judgment of sentence is AFFIRMED.

* 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.