                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                June 10, 2005
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 04-30298



UNITED STATES OF AMERICA

                  Plaintiff - Appellee

     v.

QUINTON WESLEY DEASON

                  Defendant - Appellant


             Appeal from the United States District Court
                 for the Western District of Louisiana
                        USDC No. 03-CR-30018-ALL


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

     In our previous opinion in this case, we affirmed Defendant-

Appellant Deason’s sentence.     See United States v. Deason, No.

04-30298, 124 Fed. Appx. 222 (5th Cir. Sep. 27, 2004) (per

curiam) (unpublished).     Following our judgment, Deason filed a

petition for certiorari, in which he challenged 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that this opinion should not be published and is not precedent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.

                                  -1-
constitutionality of the Sentencing Guidelines as applied to

him.1       The Supreme Court granted Deason’s petition for

certiorari, vacated our judgment, and remanded the case to this

court for further consideration in light of United States v.

Booker, 125 S. Ct. 738 (2005).       We now reconsider the matter in

light of Booker and decide to REINSTATE our previous judgment

affirming Deason’s sentence.

        In his petition for certiorari, Deason challenged only the

district court’s alleged Sixth Amendment error, arguing that the

district court erred by enhancing his sentence under a mandatory

guidelines system based on facts not admitted by him or found by

a jury beyond a reasonable doubt.2        Because Deason did not object

in the district court to the use of extra-verdict enhancements to

compute his sentence in a mandatory guideline system, this court

reviews the district court’s imposition of the enhancements for




        1
          Deason did not challenge in his petition for certiorari
our prior findings that: (1) the district court properly
calculated his base offense level under § 2K2.1 of the Sentencing
Guidelines; and (2) Deason’s base offense level did not overstate
the seriousness of his crime. See Deason, 122 Fed. Appx. at 222.
Accordingly, we will consider only Deason’s Booker-related Sixth
Amendment claim here.
        2
          Specifically, Deason alleged in his petition for
certiorari that Sixth Amendment error was committed when the
district court, rather than the jury, found that: (1) Deason’s
possession of a stolen rifle involved a firearm described in 26
U.S.C. § 5845(a), leading to a base offense level of eighteen
rather than twelve; and (2) Deason had wilfully obstructed
justice, leading to an additional two-level enhancement.

                                    -2-
plain error.3   See United States v. Olano, 507 U.S. 725, 732-37

(1993); United States v. Mares, 402 F.3d 511, 520 (5th Cir.

2005); United States v. Knowles, 29 F.3d 947, 951 (5th Cir.

1994).    This court finds plain error when: (1) there was an

error; (2) the error was clear and obvious; and (3) the error

affected the defendant’s substantial rights.    Olano, 507 U.S. at

732-37.    When these three conditions are all met, this court may

exercise its discretion to correct the error only if the error

“seriously affects the fairness, integrity, or public reputation

of judicial proceedings.”    Mares, 402 F.3d at 520 (quoting United

States v. Cotton, 535 U.S. 625, 631 (2002)).

     The first prong of the plain error test is satisfied in this

case.    Under the mandatory guideline system in place at the time

of sentencing, Deason’s sentence was enhanced based on findings

made by the judge that went beyond the facts admitted by the

defendant or found by the jury.    Deason has therefore established

Booker error.   Because of Booker, this error is also plain,

satisfying the second prong of the test.    United States v.

Bringier, 405 F.3d 310, 317 (5th Cir. 2005); Mares, 402 F.3d at

521 (citing Olano, 507 U.S. at 734, and Johnson v. United States,

520 U.S. 461, 468 (1997)).

     The third prong of the plain error test, however, is not

     3
          While Deason did not allege in the district court that
Sixth Amendment error was committed, he did raise his challenge
to the constitutionality of the Sentencing Guidelines on appeal
in this court. See Deason, 124 Fed. Appx. at 222.

                                  -3-
satisfied in this case.    Deason has failed to show that the error

affected his substantial rights.    The standard for determining

whether an error affects substantial rights requires that the

error affected the outcome of the district court’s proceedings.

Bringier, 405 F.3d at 317; Mares, 402 F.3d at 521 (citing Olano,

507 U.S. at 734).    To meet this standard, Deason bears the burden

of demonstrating a probability sufficient to undermine confidence

in the outcome.     Mares, 402 F.3d at 521 (citing United States v.

Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004)).    Because the

error here was the district court’s use of extra verdict

enhancements to reach a sentence under Guidelines that the

district court believed to be mandatory, the question is whether

Deason has demonstrated that the sentencing court would have

reached a different result had it sentenced Deason under an

advisory scheme rather than a mandatory one.     Bringier, 405 F.3d

at 317; Mares, 402 F.3d at 521-22.

     Based on the record before us, we do not know what the trial

judge would have done had the Guidelines been advisory.    Deason

has pointed to nothing in the record indicating that the district

court would have reached a different conclusion under an advisory

scheme.   In support of his claim that the district court would

have imposed a different sentence, Deason notes that counsel for

the government said that he had “no burning desire to see Mr.

Deason go to jail for any time.    But that’s not the issue before

this Court.   The issue before this Court is what does the law

                                  -4-
require of Mr. Deason’s conduct.”     Deason also points to two

statements made by the district court at sentencing.     First, the

district court stated that “[c]ontrary to public perception,

judges in federal courts do not exercise unfettered discretion in

passing sentences, and must consider the federal sentencing

guidelines and the guidelines sentencing ranges.”     Second, the

district court stated:

     I’d like to echo one thing that you said, Ms. Hudsmith;
     and, Mr. Deason, this reflects well on you and your
     family and your community, that although you have made a
     very--obviously a serious mistake that a lot of people
     still stand behind you. And they’re prepared to support
     you, not only when you--you know, when you’ve done
     something good, but also when you’ve made a mistake. And
     that--as I said, I think that reflects favorably upon
     them and on you also. And I hope that’s going to be a
     blessing to you as you pay your debt to society.

None of these statements demonstrate that the district court

would have imposed a different sentence on Deason had it

sentenced him pursuant to an advisory, rather than mandatory,

sentencing regime.   The prosecutor’s statement sheds no light on

how the district court would have sentenced Deason under an

advisory regime, and the district court’s statements, which

merely acknowledge the existence of the Guidelines and express

sympathy toward Deason, do not suggest that the district court

would have sentenced Deason differently had the Guidelines been

advisory.   Accordingly, Deason has failed to carry his burden of

demonstrating that his sentence likely would have been different

had the district court sentenced him under the post-Booker


                                -5-
advisory regime rather than the pre-Booker mandatory regime.   We

therefore find no plain error.    See Bringier, 405 F.3d at 317;

Mares, 402 F.3d at 521-22.

     For the foregoing reasons, we REINSTATE our judgment

affirming Deason’s sentence.




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