                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                                                  In the                                   January 23, 2006
                         United States Court of Appeals                                Charles R. Fulbruge III
                                       for the Fifth Circuit                                   Clerk
                                            _______________

                                              m 04-30490
                                            Summary Calendar
                                            _______________



                                   UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                 VERSUS

                                     ELANDER MARK LACHNEY,

                                                               Defendant-Appellant.

                                  _________________________

                             Appeal from the United States District Court
                                for the Middle District of Louisiana
                                       m 3:03-CR-179-ALL
                               ______________________________



  ON REMAND FROM THE SUPREME                              This court affirmed Elander Lachney’s sen-
   COURT OF THE UNITED STATES                          tence. United States v. Lachney, 119 Fed.
                                                       Appx. 640 (5th Cir. 2005) (per curiam). The
Before DAVIS, SMITH, and DENNIS,                       Supreme Court vacated and remanded for fur-
  Circuit Judges.                                      ther consideration in light of United States v.
                                                       Booker, 543 U.S. 220 (2005). Lachney v.
PER CURIAM:*                                           United States, 125 S. Ct. 2276 (2005). We re-
                                                       quested and received supplemental letter briefs
                                                       addressing the impact of Booker.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
                                                           *
and is not precedent except under the limited cir-        (...continued)
                                     (continued...)    cumstances set forth in 5TH CIR. R. 47.5.4.
                                                                  The only “indication” that might be gleaned
    Lachney acknowledges that his challenge                   from the court’s remarks cuts against Lachney,
under Booker is subject to plain error review                 because the judge found that the guideline
because in the district court he did not object               range was insufficient in view of Lachney’s
to the sentence on Sixth Amendment grounds.                   criminal history and the severity of the charged
“An appellate court may not correct an error                  conduct, so the court imposed a substantial
the defendant failed to raise in the district                 upward departure. Lachney cannot show that
court unless there is ‘(1) error, (2) that is plain,          the sentence would have been lower if the
and (3) that affects substantial rights.’” United             guidelines had been voluntary at the time of
States v. Mares, 402 F.3d 511, 520 (5th Cir.)                 sentencing. Indeed, in a commendable exer-
(quoting United States v. Cotton, 535 U.S.                    cise in candor, Lachney’s attorney, in her
625, 631 (2002)), cert. denied, 126 S. Ct. 43                 supplemental letter brief, acknowledges that
(2005).                                                       “the record . . . does not support that the dis-
                                                              trict court would have imposed a lesser sen-
    The government agrees that Lachney satis-                 tence if the guidelines had been advisory.”
fies the first two parts of the plain error test,
because the district court imposed a sentence                    Nonetheless, Lachney urges that the error
under guidelines it considered binding at the                 of applying the sentencing guidelines as man-
time of the sentence.1 He fails on the third                  datory, in contravention of Booker, constitutes
prong, however, because he cannot show an                     structural error and thus must be deemed to
error affecting substantial rights. That is be-               satisfy the third prong of the plain error test.
cause there is no “indication in the record from              This court has rejected the argument that such
the sentencing judge’s remarks or otherwise                   Booker error is structural. See United States
that gives us any clue as to whether [the judge]              v. Martinez-Lugo, 411 F.3d 597, 601 (5th
would have reached a different conclusion.”                   Cir.) (per curiam), cert. denied, 126 S. Ct. 464
Id. at 522.2                                                  (2005). “[W]e reject [the] argument that
                                                              Booker error is structural . . . .” United States
                                                              v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.)
   1                                                          (per curiam), cert. denied, 126 S. Ct. 194
      United States v. de Jesus-Batres, 410 F.3d
                                                              (2005).
154, 165-66 (5th Cir. 2005) (“[A]n error is plain
even though an objection at trial was not warranted
under existing law but a super[s]eding decision                  Finally, Lachney asserts that even if the er-
before appeal reverses that well-settled law . . . . It       ror is not deemed structural, “it should be con-
is enough that the law was settled at the time of             sidered as among the class of errors that are
appellate consideration to make the error ‘plain.’”)          ‘presumed prejudicial’” (citing United States v.
(citing Johnson v. United States, 520 U.S. 461,               Olano, 507 U.S. 725, 735 (1993)). We have
468 (1997)), cert. denied, 2006 U.S. LEXIS 134,               dismissed this contention as well. See, e.g., id.
and cert. denied, 2006 U.S. LEXIS 135, and cert.              (“[W]e reject [the] argument . . . that Booker
denied, 2006 U.S. LEXIS 136 (U.S. Jan. 9, 2006).              error should be deemed prejudicial . . . .”).
   2
     Id. at 166 (observing that “[a] defendant sen-
tenced before . . . Booker faces a difficult challenge
                                                                 2
in establishing that the sentencing court’s use of a              (...continued)
mandatory rather than an advisory Guidelines                  scheme actually affected the outcome of the pro-
                                        (continued...)        ceedings”).

                                                          2
AFFIRMED.




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