                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                                                            F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                                May 13, 2005

                                                                        Charles R. Fulbruge III
                                                                                Clerk
                                No. 03-20554
                            Conference Calendar



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JONATHAN CHIMNEY,

                                                  Defendant-Appellant.




              Appeal from the United States District Court
                   for the Southern District of Texas
                         USDC No. H-02-CR-362-1


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jonathan     Chimney   pled   guilty    to     a    two-count        indictment

charging him with conspiracy and possession of more than fifty

grams    of   cocaine   base,   commonly    known       as    crack    cocaine,      in

violation of 21 U.S.C. §§ 841 and 846.                       Chimney admitted to

possession of 53.7 grams of cocaine base.               The PSR recommended a

base offense level of 32, a two-level enhancement for Chimney’s



     *
        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opinion should not be published and is not precedent except under the limited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.
aggravating role in the offense as an organizer/leader, and a

three-level reduction for timely acceptance of responsibility,

producing in a total offense level of 31. The resulting guidelines

imprisonment range, after accounting for the statutory mandatory

minimum sentence of ten years, was 120-135 months.                  The district

court imposed the maximum guidelines sentence of 135 months’

imprisonment.         We   affirmed.1       The   Supreme   Court   vacated   our

judgment and remanded to us for further consideration in light of

United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005).2

      Chimney argues that his sentence should be vacated in light of

Booker because the two-level enhancement was made on the basis of

disputed facts under a mandatory guidelines system.                      Because

Chimney did not raise a Booker-type objection in the district

court, we review only for plain error.3              As we recently described

in United States v. Mares,

              [a]n appellate court may not correct an error
              the defendant failed to raise in the district
              court unless there is (1) error, (2) that is
              plain, and (3) that affects substantial
              rights. If all three conditions are met an
              appellate   court  may   then  exercise   its
              discretion to notice a forfeited error but
              only if (4) the error seriously affects the
              fairness, integrity, or public reputation of



      1
        See United States v. Chimney, 88 Fed. Appx. 777, 2004 WL 326764 (5th
Cir. Feb. 18, 2004) (unpublished).

      2
          See Newsome v. United States, 125 S.Ct. 1112 (2005).

      3
          United States v. Mares, --- F.3d ----, 2005 WL 503715, *7 (5th Cir.
2005).

                                        2
              judicial proceedings.4

      In the present case, the third prong has not been met.

Chimney has not carried his “burden of demonstrating that the

result     would   have    likely   been     different   had   the   judge     been

sentencing      under     the   Booker   advisory   regime     rather   than    the

pre-Booker mandatory regime.”5

      AFFIRMED.




      4
        Id. at *8 (quoting United States v. Cotton, 535 U.S. 625, 631 (2002))
(internal quotation marks omitted).
      5
          Id. at *9.

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