                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                        UNITED STATES COURT OF APPEALS
                             For the Fifth Circuit                     July 6, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 04-10277
                               Summary Calendar



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

VERSUS


BRANDON M. HOLLYWOOD, also known as Swap,
also known as Earl,

                                            Defendant-Appellant.



             Appeal from the United States District Court
                  For the Northern District of Texas
                      (USDC No. 3:03-CR-78-13-N)


       ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

       On March 28, 2005, the Supreme Court granted Hollywood’s

petition for a writ of certiorari, vacated the prior judgment of

this     court,   and     remanded   this    appeal   to   this    court     for

“consideration in light of United States v. Booker, 543 U.S.___ [,

125 S. Ct. 738] (2005).”       In its remand order the Supreme Court did



  *
   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opinion should not be published and is not precedent except under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.
not specify which of the two           majority opinions set forth in Booker

was the basis for its remand decision.             The Supreme Court did make

clear in its Booker decision that both opinions would be applicable

to all cases pending on direct review or not yet final as of

January 12, 2005.       See Booker, 125 S. Ct. at 769 (citing Griffith

v.   Kentucky,    479   U.S.    314,    328   (1987)).     Hollywood’s    appeal

satisfies those conditions.

      In his original appeal to this court, Hollywood claimed two

grounds of error: first, erroneous denial of his motion to withdraw

his guilty plea; and second, his assertion that the district court

erred in fixing his sentence as a career offender.                    Nothing in

Booker addresses either of these claims of error, and Hollywood

failed to object in the district court on either of the grounds

addressed    in   Booker,      i.e.,    (i)   a   Sixth   Amendment    violation

resulting from an enhancement of a sentence based on facts (other

than a prior conviction) found by the sentencing judge, which were

not admitted by the defendant or found by the jury; or (ii) that

the Sentencing Guidelines were unconstitutional because they were

mandatory and not advisory.             Consequently, we review for plain

error.    Because the district court did not enhance Hollywood’s

sentence on the basis of any facts found solely by the court, we

conclude that Booker’s Sixth Amendment holding is not applicable to

this case.    However, under the Booker holding that the Guidelines

are to be advisory and not mandatory, there is error in this case

because the district court viewed and acted under the Sentencing

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Guidelines as mandatory and not discretionary.                  Applying our plain

error analysis, we conclude: (1) there was error because the

district court       operated      under    a    mandatory     scheme    and   not    an

advisory scheme; and (2) such error is now plain under Johnson v.

United States, 520 U.S. 461, 468 (1997)(holding it is enough that

error be plain at the time of appellate review).                   However, under

the third prong of our plain error methodology, i.e., whether the

error affects substantial rights, it is Hollywood’s burden to show

that,   but    for   the   error    of     acting   on   the    premise    that      the

Guidelines are mandatory and not advisory, the district court would

have made a different decision.                 In United States v. Mares, 402

F.3d 511, 521 (5th Cir. 2005), we said that “the pertinent question

is   whether    [the   defendant]        demonstrated     that     the    sentencing

judgeSSsentencing under an advisory scheme rather than a mandatory

oneSSwould have reached a significantly different result.”                        That

is, the plain error standard places the

              burden of proof [on the defendant] and re-
              quires “the defendant to show that the error
              actually did make a difference:     if it is
              equally plausible that the error worked in
              favor of the defense, the defendant loses; if
              the effect of the error is uncertain so that
              we do not know which, if either, side it
              helped the defendant loses.”


Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th

Cir. 2005)).

      There is nothing in the record that supports the proposition


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that the district court, if given the opportunity to treat the

Guidelines as discretionary only, would likely have imposed a

different sentence.       The only remarks of the district court at

sentencing demonstrate that the court considered the objectives of

sentencing   identified    in   subsections   (A)-(D)   of   18   U.S.C.   §

3553(a)(2). Accordingly, we determine that Hollywood has failed to

satisfy the third prong of our plain error analysis, i.e., that the

sentence imposed by the district court violated his substantial

rights.

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in this

case. We therefore affirm the conviction and sentence as set by the

trial court.   AFFIRMED.




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