                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                        June 6, 2007

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 No. 06-50374
                               Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

ANTHONY BRYAN NAPOLEON,

                                          Defendant-Appellant.


            Appeal from the United States District Court
                  for the Western District of Texas
                         USDC No. 5:05-CR-392


Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

      Anthony Bryan Napoleon appeals a twelve-month sentence imposed

by the magistrate judge pursuant to 18 U.S.C. § 3401(a) following

Napoleon’s guilty plea to stealing Government property valued at

less than $1000.         Napoleon appealed to the district court, which

affirmed the sentence.

      Napoleon argues that his sentence must be vacated because

it   is   above    the    advisory   sentencing   Guidelines     range,      the

magistrate judge stated in writing that the sentence was within the



      *
       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this opinion should not be published and is not precedent except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.
                            No. 06-50374
                                 -2-

advisory Guidelines range, and the magistrate judge offered no

reasons for selecting the sentence.        Napoleon argues that the

district court erred on appeal by supplying sentencing reasons for

the magistrate judge.

     As Napoleon did not object to the lack of sentencing reasons,

the erroneous statement that the sentence was within the advisory

Guidelines range, or the imposition of a non-Guideline sentence, we

review his contentions for plain error.     United States v. Olano,

507 U.S. 725, 731-37 (1993); see United States v. Akpan, 407 F.3d

360, 378 (5th Cir. 2005).   The magistrate judge plainly erred by

failing to supply reasons for its selection of Napoleon’s sentence

and in stating that the sentence imposed was within the advisory

Guidelines range.

     In determining whether a sentence should be vacated and the

case remanded for re-sentencing, this court has at times applied an

objective test—whether “the trial judge could reinstate the same

sentence.”   United States v. Ravitch, 128 F.3d 865, 869 (5th Cir.

1997) (quotations omitted). At other times, this court has applied

a subjective test—“whether the defendant can show a reasonable

probability that, but for the district court’s misapplication of

the Guidelines, he would have received a lesser sentence.”   United

States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005); see also

United States v. Jones, 444 F.3d 430, 436-38 (5th Cir.), cert.

denied, 126 S. Ct. 2958 (2006).   Regardless of which analysis is

the appropriate one, Napoleon’s sentence should not be vacated.
                          No. 06-50374
                               -3-

The magistrate judge could reasonably enter the same sentence on

remand, and there is no indication in the record that had the

magistrate judge been apprised that the sentence imposed was above

the advisory Guideline range, the magistrate would have chosen a

lesser sentence.

     AFFIRMED.
