                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                                   REVISED MAY 16, 2005
                                                                                       May 2, 2005

                                           In the                                Charles R. Fulbruge III
                                                                                         Clerk
                United States Court of Appeals
                              for the Fifth Circuit
                                       _______________

                                         m 03-11299
                                       _______________




                                 UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                           VERSUS

                                   FRANK PACO GUEVARA,

                                                           Defendant-Appellant.


                              _________________________

                          Appeal from the United States District Court
                              for the Northern District of Texas

                                  _________________________




Before HIGGINBOTHAM, SMITH, and                    also appeals his classification as a career of-
  BENAVIDES, Circuit Judges.                       fender under the sentencing guidelines. Fi-
                                                   nally, he challenges his sentence in light of
JERRY E. SMITH, Circuit Judge:                     Blakely v. Washington, 124 S. Ct. 2531
                                                   (2004), and United States v. Booker, 125 S.
   Frank Guevara challenges his conviction
under 18 U.S.C. § 2332a of threatening to use
a weapon of mass destruction (“WMD”). He
Ct. 738 (2005).1 Finding no reversible error,               ing communication by way of the United
we affirm.                                                  States Postal Service in violation of 18 U.S.C.
                                                            § 876. During trial, Guevara moved for judg-
                       I.                                   ment of acquittal at the close of the govern-
   Guevara committed what is called an “an-                 ment’s case and at the close of all of the evi-
thrax hoax.” In August 2002 he wrote and                    dence. His motions were denied, and the jury
mailed a letter to United States District Judge             convicted him on both counts.
Mary Lou Robinson. An employee at the
court’s mail depository retrieved the letter and,               The presentence report (“PSR”) classified
recognizing that it was from an inmate, opened              Guevara as a career offender under the guide-
the envelope, which contained a white, pow-                 lines because he was over eighteen years of
dery substance that got onto the employee’s                 age at the time of the crime, he had at least
fingers. The letter stated:                                 two convictions for crimes of violence, and the
                                                            probation officer characterized the § 2332a
   Mary Lou Robinson,                                       conviction as a crime of violence. Guevara
                                                            objected to the career offender classification,
   I am sick and tired of your games[.] All                 arguing that the instant WMD conviction was
   [A]mericans will die as well as you. You                 not a crime of violence. The district court
   have been now been [sic] exposure [sic] to               overruled his objection and, based on this
   anthrax.                                                 classification, imposed a sentence of life im-
                                                            prisonment.2
   Mohammed Abdullah.
                                                                                  II.
The substance in the envelope turned out to be                                    A.
harmless hair gel and powdered cleanser.                                           1.
                                                               We review the denial of a motion for judg-
   The incident effectively closed the federal              ment of acquittal de novo. See United States
building for a period of time. Local police                 v. DeLeon, 170 F.3d 494, 496 (5th Cir. 1999).
with hazardous materials training, bomb squad               When reviewing the sufficiency of the evi-
personnel, and the FBI responded. The build-                dence, we consider “‘whether a reasonable tri-
ing’s air conditioning had to be turned off.                er of fact could have found that the evidence
Judge Robinson (the target of the letter) shut              established the essential elements of the crime
down her courtroom. The federal building                    beyond a reasonable doubt.’” United States v.
housed numerous federal agencies that were                  Cathey, 259 F.3d 365, 368 (5th Cir. 2001)
required to close for the rest of the day.                  (quoting United States v. Ortega Reyna, 148
                                                            F.3d 540, 543 (5th Cir. 1998)).
   The government charged Guevara with
(1) threatening to use a WMD in violation of                   2
18 U.S.C. § 2332a and (2) mailing a threaten-                    Guevara does not challenge his conviction un-
                                                            der § 876. Given the statutory maximum pun-
                                                            ishment of life in prison under § 2332a, Guevara’s
                                                            offense level was raised from 27 to 37, and his
   1
     The challenge pursuant to Booker is made in            criminal history category was raised from V to VI.
a supplemental letter brief filed at this court’s re-       These adjustments dictated a sentencing range of
quest after Booker was announced.                           360 months to life.

                                                        2
   § 2332a provides in relevant part:                           These arguments are nonetheless unavailing
                                                            in light of United States v. Reynolds, 381 F.3d
   A person who, without lawful authority,                  404, 406 (5th Cir. 2004), cert. denied, 125 S.
   uses, threatens, or attempts or conspires to             Ct. 922 (2005), in which we construed
   use, a weapon of mass destruction . . .                  § 2332a to contain no requirement of future
   (2) against any person within the United                 action:
   States, and the results of such use affect
   interstate or foreign commerce or, in the                   We have found no credible support for a
   case of a threat, attempt, or conspiracy,                   definition of “threat” that requires reference
   would have affected interstate or foreign                   to a future act. We therefore conclude that
   commerce . . . shall be imprisoned for any                  the proper definition of “threaten” in
   term of years or for life . . . .                           § 2332a is that adopted by this court in
                                                               Myers: a communication that has a reason-
When construing a criminal statute, we are                     able tendency to create apprehension that
bound by the plain and unambiguous meaning                     [the] originator of the communication will
of its language. See United States v. Kay, 359                 act as represented.
F.3d 738, 742 (5th Cir. 2004). We look first
to the words’ ordinary and natural meaning                  In Reynolds the defendant, who was involved
and the overall policies and objectives of the              in a dispute with a mortgage company, told the
statute. See id. We must seek to give every                 company’s telephone operator that he had just
word in the statute some operative effect. See              dumped anthrax into the air conditioning
id.                                                         system. Id. at 405. Company security person-
                                                            nel ultimately deemed the threat to be non-
                        2.                                  credible and decided not to evacuate the build-
   Guevara contends that to secure a convic-                ing. Reynolds was nonetheless convicted un-
tion under § 2332a, the government must es-                 der § 2332a for threatening to use a WMD.
tablish both that he made a “threat” and that it
encompassed t he “use” of a weapon of mass                     On appeal Reynolds argued that he had not
destruction. Guevara makes arguments that                   “threatened” to use a WMD because the state-
would, in the absence of preclusive authority,              ment in question conveyed only the completion
make closer the issue of whether “to threaten               of a past act. Citing United States v. Myers,
to use” requires an expression of intent to act             104 F.3d 76, 79 (5th Cir. 1997), we held that
in the future. There are plain-language and                 § 2332a’s threat language does not require ref-
legislative history arguments that, in a vacuum,            erence to a future act.4 There is no reason
might lend credence to Guevara’s interpreta-
tion.3
                                                               3
                                                                (...continued)
                                                            ishment in that legislation is five years in prison.
   3
     Guevara points to legislative materials that
                                                               4
suggest Congress perceived anthrax hoaxes to re-                  Guevara makes much of the fact that the
main uncovered by existing laws. Those materials            statute says “to use,” and he reads the “to use”
include (1) the fact that Congress recently enacted         language as requiring future action. Aside from
a law to punish them and (2) the fact that, except in       the fact that Reynolds forecloses this interpretation,
very limited circumstances, the maximum pun-                we remain skeptical of any earnest attempt to read
                                       (continued...)                                               (continued...)

                                                        3
able way to distinguish that ruling here.                  than sufficient to sustain the conviction under
                                                           our interpretation of the statutory language.
   Once we have interpreted § 2332a to have
no future-action requirement, the evidentiary                                     B.
question is an easy one. Guevara claimed to                    Although we ordinarily review jury instruc-
have mailed anthrax, and the record is more                tions for abuse of discretion, we review an in-
                                                           struction de novo where there is the possibility
                                                           that the jury instruction misstated an element
   4
    (...continued)                                         of the crime, because that is an issue of statu-
too much into the “to use” language. To be sure,           tory construction. See United States v. Ho,
§ 2332a is not a glittering example of statutory           311 F.3d 589, 605 (5th Cir. 2002). Guevara
craftsmanship. Again, it reads:                            objected to the jury instruction indicating that
                                                           the government did not have to prove that he
   A person who, without lawful authority, uses,
                                                           actually intended or was able to carry out the
   threatens, or attempts to use, a weapon of mass
   destruction . . . (2) against any person within
                                                           threat. The district court instructed the jury as
   the United States, and the results of such use          follows:
   affect interstate or foreign commerce or, in the
   case of a threat, attempt, or conspiracy, would            A threat is a serious statement expressing
   have affected interstate or foreign commerce . .           an intention to do an act which under the
   . shall be imprisoned for any term of years or             circumstances would cause apprehension in
   for life . . . .                                           a reasonable person, as distinguished from
                                                              idle or careless talk, exaggeration, or some-
Guevara would distribute the phrase “to use” up-              thing said in a joking manner. It is not
str eam in the sentence, applying it to the word              necessary to prove that the defendant actu-
“threaten,” to get to the requirement that Guevara            ally intended or was able to carry out the
“threaten to use.” Such distributive mechanics,               threat made.
however, would also require that “to use” be dis-
tributed upstream to the word “uses,” a grammati-
                                                           We view this issue as redundant of that dis-
cal construction that leaves something to be de-
sired.
                                                           cussed in part II.A.2. If, as we have held both
                                                           here and in Reynolds, a person can violate
    That construction, however, is probably super-         § 2332a merely by making a statement about
ior to the alternative, which is to decline to dis-        completed action, and if, as we held in Rey-
tribute “to use” upstream. T his alternative con-          nolds, that threat need not be credible, there is
struction would leave the statute an unintelligible        no problem with the court’s instruction re-
law punishing any “person who, without lawful au-          garding intent or plausibility.
thority . . . threatens . . . a weapon of mass de-
str uction.” We are faced with the unenticing                                    III.
choice, on the basis of the “to use” language, be-            Section 2332a requires the government to
tween a construction that reads “uses . . . to use”        show that the use of a WMD, as threatened,
and a construction that leaves the statute without a       would have affected interstate commerce. In
direct object. We therefore decline to refocus in-
                                                           United States v. Wise, 221 F.3d 140, 152 (5th
tensely on the “to use” language where Reynolds
                                                           Cir. 2000), we held that, in the case of a
would seem to foreclose the question in any event.
See Reynolds, 381 F.3d at 406 (explicitly con-
                                                           § 2332a threat, there need not be an actual or
templating the phrase “threaten to use”).                  substantial effect on commerce.

                                                       4
                        A.                                jury instruction may not become law of the
   The court erroneously instructed the jury              case if both (1) it is patently erroneous and
that, to convict Guevara under § 2332a, it had            (2) the issue is not misstated in the indictment.
to find that the WMD, if used as threatened,
would have substantially affected interstate                                       B.
commerce; the statute requires only that the                  We review the interstate commerce element
threat, if carried out, would have some effect,           determination for sufficiency of the evidence
not necessarily a substantial one. The court              by deciding whether, after viewing the evi-
instructed that “commerce” meant the “flow of             dence in the light most favorable to the ver-
goods, merchandise, money, or other property              dict, any rational trier of fact could have found
between states.” The interstate commerce                  the essential elements of the offense beyond a
element was stated properly in the indictment.            reasonable doubt. See United States v. Dan-
                                                          iel, 957 F.2d 162, 164 (5th Cir. 1992). With-
    Guevara argues that because the instruc-              out speculating unnecessarily as to the inter-
tions mistakenly stated, without government               state commerce effects flowing from the suc-
objection, the degree of effect required on               cessful release of anthrax spores, we conclude
commerce, the “substantially affected” lan-               that Guevara’s threat actually affected inter-
guage became “law of the case,” and the gov-              state commerce. The federal building was shut
ernment had to pro ve it beyond a reasonable              down for a day and a half; numerous federal
doubt. Although there is no binding precedent             agencies, including the DEA, experienced de-
in this circuit, there is persuasive authority that       lay; and Judge Robinson’s court (which han-
guides our analysis.                                      dled diversity suits) was interrupted. These
                                                          circumstances are more than enough for us to
   In United States v. Zanghi, 189 F.3d 71,               affirm on sufficiency of the evidence review.
79-80 (1st Cir. 1999), the court held that
where a misstated element is included in the                                   IV.
jury instruction, but not in the indictment, the                                A.
misstated element does not necessarily become                 Guevara argues that his WMD conviction
law of the case. Our court has held as much,              was incorrectly classified as a “crime of vio-
albeit in an unpublished opinion. See United              lence” under U.S.S.G. § 4B1.1. Before Book-
States v. Munoz-Hernandez, 94 Fed. Appx.                  er, we reviewed a district court’s interpreta-
243, 245 (5th Cir. 2004) (unpublished), va-               tion and application of the sentencing guide-
cated on other grounds, 125 S. Ct. 999                    lines de novo. See United States v. Charles,
(2005). We now adopt the First Circuit rule,              301 F.3d 309, 312-13 (5th Cir. 2002) (en
to the effect that the “substantially affected”           banc). Because these are questions of law, the
language does not become law of the case.5                same standard should control in the wake of
Consistent with the foregoing authorities, the            Booker. “[W]hen a district court has imposed
                                                          a sentence under the Guilelines, this court con-
   5
                                                          tinues after Booker to review the district
      Guevara also argues that the “substantially         court’s interpretation and application of the
affected” language is invited error. We are uncer-
                                                          Guidelines de novo.” United States v. Ville-
tain precisely what to make of this argument. The
                                                          gas, 404 F.3d 355, 359 (5th Cir. 2005) (per
district court issued the jury instruction, and the
government merely failed to object. Moreover, the
                                                          curiam).
government does not “complain” of the error.

                                                      5
                      B.                                crime of violence under the guidelines.
   The guidelines define a “crime of violence”
as any offense under federal or state law that is          Other circuits have determined that mailing
punishable by imprisonment for more than one            a threatening communication under § 876
year that                                               constitutes a crime of violence under § 4B1.2-
                                                        (a)(1). In United States v. Left Hand Bull,
   (1) has as an element the use, attempted             901 F.2d 647, 649 (8th Cir. 1990), the court
   use, or threatened use of physical force             reasoned that, because of § 876’s requirement
   against the person of another, or                    that the communication threaten to injure the
                                                        addressee or another third party, § 4B1.2(a)(1)
   (2) is the burglary of a dwelling, arson, or         was satisfied.
   extortion, involves the use of explosives or
   otherwise involves conduct that presents a               Reaching the contrary conclusion, more-
   serious potential risk of physical injury to         over, would require us to say that the use of
   another.                                             WMD’s does not involve physical force. Gue-
                                                        vara addresses this argument in a single sen-
U.S.S.G. § 4.B1.2(a). Because Guevara’s                 tence of his opening brief: “Here, none of the
conviction qualifies as a “crime of violence”           offenses speak to the use of ‘force’ or even
under § 4B1.2(a)(1), we express no opinion as           threatened attempted force.” We reject that
to whether it would qualify under § 4B1.2-              illogical reasoning and conclude, categorically,
(a)(2).                                                 that the WMD’s at issue here involved physi-
                                                        cal force within the meaning of § 4B1.2(a)(1).6
   Section 2332a contains, as an element, the
threatened use of a weapon of mass destruc-                                    V.
tion. The jury was instructed, in relevant part,            Guevara argues that, under Blakely, the dis-
that to convict, it must find that “[Guevara],          trict court sentenced him unconstitutionally ac-
without lawful authority, knowingly and inten-          cording to facts not found by a jury and to
tionally threatened to use a weapon of mass             which he did not stipulate. The Court directly
destruction” and that “the nature of the threat         addressed this issue in Booker.
was to use the weapon against a third person
within the United States.” In other words, the              Based solely on the facts adduced in the
jury instructions state precisely the require-          jury findings, the maximum sentence the dis-
ments of the statute.                                   trict court could assess against Guevara was
                                                        seventy-eight months.7 Guevara asserts that
   Given that we uphold the “threat” status of
Guevara’s anthrax hoax under Reynolds, the
                                                           6
only determination we need make is whether,                  We decline to engage in the more complicated
under the guidelines, WMD’s are instruments             analysis under § 4B1.2(a)(2), which under the
of physical force within the meaning of                 “otherwise clause” would require us to consider
§ 4B1.2(a)(1); we have little problem conclud-          risk posed by hypothetical conduct.
ing that they are. We need not look to the in-             7
                                                             Guevara’s pre-adjustment maximum pursuant
dictment, the facts, or anything other than the
                                                        to the guidelines is calculated using the base of-
statute to determine whether § 2332a contains           fense level of 20 as found in the PSR. Coupled
an element that qualifies Guevara’s crime as a                                               (continued...)

                                                    6
the court should not have increased the sen-                 Booker. First, it found that mandatory sen-
tence by deciding that he (1) committed a                    tencing based on facts not found by the jury
crime of violence; (2) substantially disrupted               violates the Sixth Amendment. See id. at 749-
governmental functions; and (3) chose his                    50. Second, it severed and excised the provi-
victim on account of her governmental status.                sions that rendered the guidelines unconstitu-
On the basis of those circumstances, the court               tional, specifically those making them manda-
increased Guevara’s maximum available sen-                   tory.9 See id. at 759-61. Finally, it instructed
tence under the guidelines to life imprisonment              lower courts to apply ordinary prudential doc-
for the § 2332a violation; the court then pro-               trines in determining whether the imposed
ceeded to impose that maximum sentence.                      sentence requires a vacatur and remand. See
                                                             id. at 769.
   In Booker, the defendant was charged with
possession with intent to distribute at least fifty             Based on these directives, (1) the district
grams of crack. See Booker, 125 S. Ct. at                    court’s mandatory sentence based on certain
746. Based on facts the court found by a pre-                facts found exclusively in the sentencing pro-
ponderance of the evidence at a post-trial sen-              ceeding violates the Sixth Amendment;
tencing hearing, it imposed a sentence exceed-               (2) Guevara failed to preserve the error ade-
ing that which it could have imposed on the                  quately, so his sentence is subject to plain er-
basis of the facts proven to the jury beyond a               ror review; and (3) the error did not affect his
reasonable doubt.8 See id.                                   substantial rights as required under the plain
                                                             error standard. We therefore affirm the sen-
   The Court made several key holdings in                    tence.

                                                                                   A.
   7
    (...continued)                                              There is no Sixth Amendment violation
with a criminal history Category V, this offense             with respect to post-trial consideration of ca-
level yields a range of 63-78 months.                        reer offender status. According to U.S.S.G.
   8                                                         § 4B1.1(a),
      Having heard evidence that he had distributed
92.5 grams of crack, the jury found Booker guilty
of a statutory offense carrying a penalty of 10                 A defendant is a career offender if (1) the
years to life in prison. See Booker, 125 S. Ct. at              defendant was at least eighteen years old at
746. Based on his criminal history and the quan-                the time the defendant committed the in-
tity of drugs found by the jury, the guidelines stipu-          stant offense of conviction; (2) the instant
late a sentencing range of 210-262 months. See id.              offense of conviction is a felony that is ei-
In a post-conviction sentencing hearing the court               ther a crime of violence or a controlled sub-
found, according to a preponderance of the evi-                 stance offense; and (3) the defendant has at
dence, that Booker had possessed an additional 566              least two prior felony convictions of either
grams of crack and was guilty of obstructing                    a crime of violence or a controlled sub-
justice. See id. That additional factfinding yield-             stance offense.
ed, according to the guidelines, a sentence of 360
months to life in prison. See id. The court im-
posed a 30-year sentence, compared to d to the 21
                                                                9
years and 10 months that could have been meted on                Specifically, the decision severs and excises
the basis of facts proven to the jury beyond a               18 U.S.C. § 3553(b)(1) (Supp. 2004) and
reasonable doubt. See id.                                    § 3742(e) (main ed. and Supp. 2004).

                                                         7
The question Booker answered in the affirma-               lence (rather than controlled substance) con-
tive was “[w]hether the Sixth Amendment is                 victions, we focus exclusively on § 4B1.2(a).
violated by the imposition of an enhanced
sentence under the United States Sentencing                   Section § 4B1.2(a)(1) instructs district
Guidelines based on the sentencing judge’s                 courts to treat the offense of conviction as a
determination of a fact (other than a prior                crime of violence if it “has as an element the
conviction) that was not found by the jury or              use, attempted use, or threatened use of physi-
admitted by the defendant.” Booker, 125 S.                 cal force against the person of another.” By
Ct. at 747 n.1 (emphasis added). Career of-                definition, then, a court cannot classify an of-
fender status is not “a sentencing judge’s de-             fense as a crime of violence if a jury has not
termination of a fact other than a prior convic-           already found beyond a reasonable doubt the
tion.” Aside from Guevara’s age (a fact to                 element of the offense on which that determi-
which he stipulated in his competency report),             nation is predicated.
the determinations made in the course of a
career offender classification are all questions               Section 4B1.2(a)(2) instructs courts to con-
of law; in other words, they are precisely the             sider the instant offense a crime of violence if
determinations the above-quoted italicized                 it is “burglary of a dwelling, arson, or extor-
language exempts.                                          tion, involves use of explosives, or otherwise
                                                           involves conduct that presents a serious poten-
   Thus, Booker explicitly excepts from Sixth              tial risk of physical injury to another.” Our
Amendment analysis the third component of                  caselaw interpreting that provision has cate-
the crime of violence determination, the fact of           gorically forbidden courts from looking be-
two prior convictions.10 The remaining deter-              yond the statute and the indictment in making
mination necessary to classify a defendant as a            this decision.11 Therefore, as is the case with
career offender, then, is whether the current              § 4B1.2(a)(1), under § 4B1.2(a)(2) the sen-
conviction constitutes a “crime of violence.”              tencing court cannot base its crime-of-violence
That determination is in turn made pursuant to             determination on anything beyond what is
§ 4B1.2(a)-(b). Because Guevara’s career of-               present in the statute or alleged in the indict-
fender status depends only on crime-of-vio-                ment, elements as to which, to convict, the
                                                           jury must have found evidence beyond a rea-
                                                           sonable doubt in any event. As a consequence,
   10
      One might argue that whereas Booker speaks           the crime-of-violence determination is made
in terms of the “fact” of prior convictions, the           exclusively pursuant to facts found by a jury,
guidelines career offender determination involves          and Guevara’s classification as a career of-
the “character” of those convictions. To classify          fender is not in violation of the Sixth Amend-
a defendant as a career offender under the guide-          ment under Booker.
lines, a court must determine that he has two prior
felony convictions, both of which must be either (1)                          B.
crimes of violence or (2) controlled substance                Guevara urges that two other judicially-
convictions meeting certain specifications. Though
we express no opinion on the factual versus legal
character of finding the controlled substance
                                                              11
violations, characterizing an offense as a crime of              See, e.g., United States v. Calderon-Pena,
violence is a purely legal determination, as we will       383 F.3d 254 (5th Cir. 2004) (en banc), cert. de-
explain.                                                   nied, 125 S. Ct. 932 (2005).

                                                       8
found facts violated his Sixth Amendment                 served), petition for cert. filed (U.S. Mar. 31,
rights: the findings that he substantially dis-          2005) (No. 04-9517).
rupted governmental functions and that he
chose his victim on account of her govern-                                        C.
mental status. Guevara failed to raise this is-                                   1.
sue at the sentencing hearing, and ultimately               Under Booker, the Sixth Amendment was
did so only in a supplemental appellate brief            violated when the district court mandatorily
after the Court decided Blakely.                         adjusted Guevara’s sentence on the basis of
                                                         the remaining two questions of fact not found
   In United States v. Rios-Quintero, 204 F.3d           by a jury beyond a reasonable doubt. With re-
214 (5th Cir. 2000), we addressed what stan-             spect to the first step in our plain error review,
dard of review to apply where a party briefed            therefore, there was error. See Mares, id. at
a claim on appeal but had not raised it in the           520-21.
district court because the Supreme Court had
not yet issued the decision underlying the                  With respect to the second step, we assess
claim itself.12 We concluded that the plain er-          whether an error is “plain” or “obvious” by
ror standard of review was nonetheless appro-            reference to the law as it exists at the time of
priate for claims first raised on appeal where           appellate consideration. See Cotton, 535 U.S.
the relevant Supreme Court case was decided              at 631-32). Again, Booker left no doubt as to
during the pendency of that appeal. Id. at 215.          the status of the error involved in mandatorily
We thus apply a plain error standard to Gueva-           sentencing defendants pursuant to judge-found
ra’s Sixth Amendment claim.                              facts: Any case now on appeal, in which the
                                                         court made factual findings pursuant to the
   Under plain error review, to correct an er-           guidelines, and where those findings were not
ror not properly preserved, we must find                 implicit in the verdict or admitted by the de-
(1) error (2) that is plain and (3) affects sub-         fendant, involves a constitutional error that is
stantial rights.13 “If all three conditions are          plain under Blakely and Booker. See Mares,
met an appellate court may then exercise its             402 F.3d at 521.
discretion to notice a forfeited error but only if
(4) the error seriously affects the fairness, in-                                2.
tegrity, or public reput ation of judicial                   The pivotal issue in Guevara’s Sixth
proceedings.” United States v. Cotton, 535               Amendment claim is therefore whether the ob-
U.S. 625, 631 (2002). See also United States             vious sentencing error affected his substantial
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005)              rights. To have done so, it must have affected
(reiterating that this is the applicable standard        the outcome of the proceeding. Id. The de-
in Booker cases where the error is not pre-              fendant bears the burden of showing a proba-
                                                         bility that the error undermines co nfidence in
                                                         the outcome. Id.
   12
      The Supreme Court case at the heart of the
tardy party’s claim in Rios-Quintero was Jones v.                              3.
United States, 526 U.S. 227 (1999).                         The base offense level for violation of
   13                                                    § 2332a(a)(2) is 20. See U.S.S.G. § 2M6.1.
     See United States v. Olano, 507 U.S. 725,
732 (1993); United States v. Calverley, 37 U.S.
                                                         Guevara’s total offense level was 27 after up-
160, 162 (5th Cir. 1994) (en banc).                      ward adjustments for substantial disruption of

                                                     9
public, governmental, or business functions or          Guevara to the maximum allowable punish-
services (+4), see id. § 2MG.1(b)(3)(i), and            ment (life) under both the guidelines and
because the victim was a government officer             § 2332a, and because the maximum sentence
or employee and the offense of conviction was           the court can impose, even post-Booker,
motivated by such status (+3), see id. § 3A1.2-         remains limited to life by the terms of § 2332a,
(a)(1)(A), (2).                                         there is no reason to believe that the sentenc-
                                                        ing court would sentence Guevara any differ-
    According to § 4B1.1(b), the criminal his-          ently merely because the guidelines are advi-
tory category of any career offender is VI. Al-         sory.
so according to § 4B1.1(b), any career of-
fender who is convicted of an offense with a               This analysis is reinforced by Mares, which
maximum sentence of life under the substan-             states that “the pertinent quest ion is whether
tive statute is assigned an offense level of 37.        [the defendant] demonstrated that the sentenc-
Based on a criminal history category of VI and          ing judgeSSsentencing under an advisory
a total offense level of 37, Guevara’s guideline        scheme rather than a mandatory oneSSwould
range is 360 months to life.                            have reached a significantly different result.”
                                                        Mares, 402 F.3d at 521. “[T]he defendant
   The rub is that the judge’s post-trial fact-         rather than the government bears the burden of
finding did not alter Guevara’s career offender         persuasion with respect to prejudice” in these
status, and if Guevara remains a career of-             determinations. Id. Here, as in Mares,
fender convicted under § 2332a, he would be
in the same guideline range irrespective of                [w]e do not know what the trial judge
whether the court found additional facts by a              would have done had the Guidelines been
preponderance of the evidence. His career of-              advisory. Except for the fact that the sen-
fender status yields a criminal history category           tencing judge imposed the statutory maxi-
of VI and a total offense level of 37 without              mum sentence . . ., there is no indication in
regard to whether a judge or jury found that he            the record from the sentencing judge’s
(1) disrupted governmental functions and                   remarks or otherwise that gives us any clue
(2) t argeted his victim on the basis of her               as to whether [the judge] would have
governmental status.                                       reached a different conclusion.

   We summarize this analysis as follows:               Id. at 522. And again, as in Mares, “the de-
Even if the guidelines were mandatory and               fendant cannot carry his burden of demonstrat-
Guevara could be sentenced only according to            ing that the result would have likely been dif-
elements found by a jury beyond a reasonable            ferent had the judge been sentencing under the
doubt, his guidelines range would remain un-            Booker advisory regime rather than the pre-
changed. As Booker instructs, however, the              Booker mandatory regime [, so] the defendant
guidelines are merely “advisory.” Because of            cannot satisfy the third prong of the plain error
Guevara’s classification as a career offender,          test.” Id. We need not address Guevara’s ar-
the guidelines would “advise” the same sen-             guments regarding the other two enhance-
tencing range irrespective of whether the ad-           ments, because he points to nothing in the rec-
justment circumstances existed.                         ord suggesting that they created a prejudicial
                                                        Booker error.
   Finally, because the district court sentenced

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   The judgments of conviction and sentence
are AFFIRMED.




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