                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                     November 3, 2005
                            FOR THE FIFTH CIRCUIT
                            _____________________                 Charles R. Fulbruge III
                                                                          Clerk
                                 No. 03-21213
                               Summary Calendar
                            _____________________

UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                     versus

DUDLEY EARL MYERS,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                      USDC No. H-03-R-123-ALL
_________________________________________________________________

                              ON REMAND FROM
                  THE SUPREME COURT OF THE UNITED STATES

Before JOLLY and HIGGINBOTHAM, Circuit Judges.1

PER CURIAM:2

     This    court    affirmed   Dudley   Earl   Myers’s   conviction         and

sentence.     United States v. Myers, 108 Fed. Appx. 937 (5th Cir.

2004).      The   Supreme    Court   vacated   and   remanded    for    further

consideration in the light of United States v. Booker, 125 S.Ct.

738 (2005).       Myers v. United States, 125 S.Ct. 2281 (2005).               We


     1
      Judge Pickering was a member of the original panel but
retired from the Court on December 8, 2004 and, therefore, did not
participate in this decision.
     2
      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this opinion should not be published and is not precedent except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.
requested and received supplemental letter briefs addressing the

impact of Booker.

       In   his    supplemental   brief,   Myers   argues   that   his   Sixth

Amendment rights were violated because his sentence was enhanced

based on facts that he did not admit in his guilty plea.                   He

contends that, under Booker, he can be held accountable only for

the $5,000 loss alleged in the count to which he pleaded guilty.

       Although Myers objected to the sentencing enhancements before

the district court, he did not object on Sixth Amendment grounds.

Accordingly, we review his contentions under the plain error

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

cert. denied, ___ S.Ct. ___, 200-5 WL 816208 (U.S. Oct. 3, 2005).

In the light of Booker, the district court plainly erred by

calculating Myers’s Guidelines sentence based on facts not admitted

by Myers in his guilty plea and by viewing the Guidelines as

mandatory.    Id. at 520-21.      Myers, however, has failed to carry his

burden of establishing that his substantial rights were affected by

the error.        He has not pointed to any evidence in the record or

statements by the district court indicating that the court would

have    imposed      a   lesser   sentence   under   advisory      sentencing

guidelines.       See id. at 521-22.   The district court stated that it

had planned to impose a sentence at the upper end of the guideline

range, but sentenced Myers at the low end based on the Government’s

recommendation pursuant to the plea agreement. The court noted for

the record that it would have imposed the same sentence even if

                                       2
Myers were entitled to a further reduction of his base offense

level.   Under these circumstances, there is no basis for believing

that the district court would have imposed a lesser sentence had it

known that it had the discretion to do so.

     For the foregoing reasons, we conclude that nothing in the

Supreme Court’s Booker decision requires us to change our prior

affirmance in this case.     We therefore reinstate our judgment

affirming Myers’s conviction and sentence.

                                              JUDGMENT REINSTATED.




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