                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                   June 23, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 04-30205
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

           JOSEPH LEE JACKSON,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
     for the Western District of Louisiana
             m 03-CR-50078-ALL
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH and GARZA, Circuit Judges,                    petition for cert. filed (Mar. 31, 2005)
  and VANCE,* District Judge.                              (No. 04-9517). “An appellate court may not
  Circuit Judges.                                          correct an error the defendant failed to raise in
                                                           the district court unless there is ‘(1) error,
PER CURIAM:**                                              (2) that is plain, and (3) that affects substantial
                                                           rights.’” Id. (quoting United States v. Cotton,
    This court affirmed Joseph Jackson’s con-              535 U.S. 625, 631 (2002)).
viction. United States v. Jackson, 390 F.3d
393 (5th Cir. 2004). The Supreme Court va-                    Because Jackson admitted to the quantity
cated and remanded for further consideration               of drugs on which his sentence was based,
in light of United States v. Booker, 125 S. Ct.            there is no Sixth Amendment violation. His
738 (2005). Jackson v. United States, 125                  only remaining claim is that he nonetheless is
S. Ct. 1683 (2005). We requested and re-                   entitled to be sentenced under an advisory,
ceived supplemental letter briefs addressing the           instead of mandatory, guideline regime.
impact of Booker.                                          “Technically, this is a “Fanfan error, not a
                                                           Booker error.” United States v. Martinez-
   Jackson did not raise a Sixth Amendment                 Lugo, 2005 U.S. App. LEXIS 10432, at * 5
issue in the district court but did so in a letter         (5th Cir. June 7, 2005) (per curiam) (referring
brief filed in this appeal long before our opin-           to Ducan Fanfan, the second defendant in the
ion issued. He raised the issue again in his               consolidated opinion in Booker). See United
petition for writ of certiorari. In his supple-            States v. Villegas, 404 F.3d 355, 364 (5th Cir.
mental brief addressing Booker, he acknowl-                2005) (per curiam) (discussing the difference
edges that at his guilty plea hearing, he admit-           between Booker and Fanfan error).
ted to possessing 1,486 grams of cocaine, a
figure that was used to calculate his sentence.                The government concedes that although
The district court then departed upwardly from             there is no Booker error, there is Fanfan error.
the range calculated in accordance with the                The third prong of the plain-error test requires,
then-mandatory sentencing guidelines.                      under Mares, that “the defendant rather than
                                                           the government bears the burden of persuasion
    By virtue of his failure to object in the dis-         with respect to prejudice.” Mares, 402 F.3d at
trict court, Jackson concedes that he is subject           521 (citing United States v. Olano, 507 U.S.
to plain-error review. See United States v.                725, 734 (1993)). To show that his substantial
Mares, 402 F.3d 511, 520 (5th Cir. 2005),                  rights are affected, Jackson would have to
                                                           “point[] to . . . evidence in the record suggest-
                                                           ing that the district court would have imposed
   *
     District Judge of the Eastern District of Loui-       a lesser sentence under an advisory guidelines
siana, sitting by designation.                             system.” United States v. Taylor, No. 03-
   **                                                      10167, 2005 U.S. App. LEXIS 8701, at *4
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                           (5th Cir. May 17, 2005) (per curiam) (citations
termined that this opinion should not be published
and is not precedent except under the limited cir-
                                                           omitted). In other words, “the pertinent ques-
cumstances set forth in 5TH CIR. R. 47.5.4.                tion is whether [the defendant] demonstrated

                                                       2
that the sentencing judgeSSsentencing under                    The judgment of conviction is AFFIRMED
an advisory scheme rather than a mandatory                  for the reasons set forth in our initial opinion.
oneSSwould have reached a significantly dif-                For the reasons herein explained, the judgment
ferent result.” Mares, 402 F.3d at 521. To                  of sentence is likewise AFFIRMED.
meet this standard, the proponent of the error
must demonstrate a probability “sufficient to
undermine confidence in the outcome.” Unit-
ed States v. Dominguez Benitez, 542 U.S. 74,
__, 124 S. Ct. 2333, 2340 (2004).

   In her supplemental brief, Jackson’s counsel
candidly admits that “the record does not
satisfy the Mares prejudice standard for plain
error review.” She suggests that Mares is
wrongly decided but acknowledges it as bind-
ing Fifth Circuit precedent. She proceeds,
however, to argue further that applying the
sentencing guidelines as mandatory is struc-
tural error that requires no showing of preju-
dice “because it affected the entire framework
within which sentencing proceeded [and]
should be deemed to have affected Jackson’s
substantial rights, in satisfaction of the third
prong of Olano’s plain error test.”

    This contention has no merit, for we have
determined that Booker error is not structural
error. United States v. Muhammad, No. 03-
10137, 2005 U.S. App. LEXIS 9078, at *3
(5th Cir. May 18, 2005) (per curiam) (unpub-
lished). “[W]e reject [the] argument that
Booker error is structural and insusceptible to
harmless error analysis, and that Booker error                 1
                                                                 (...continued)
should be presumed prejudicial, as both claims              related argument that “[e]ven if the error is not
are in conflict with Mares.” United States v.               deemed structural, it should be considered as
Malveaux, 2005 U.S. App. LEXIS 5960,                        among the class of errors that are ‘presumed pre-
at * 4 n.9 (5th Cir. Apr. 11, 2005) (per                    judicial’” (citing, inter alia, United States v. Rey-
curiam). Neither Booker error nor Fanfan                    na, 358 F.3d 344, 351-52 (5th Cir.) (en banc),
error is structural. Martinez-Lugo, 2005 U.S.               cert. denied, 541 U.S. 1065 (2004)). As the gov-
App. LEXIS 10432, at *8.1                                   ernment points out, Reyna addressed an entirely
                                                            different situation, and in any event, Jackson’s
                                                            argument is foreclosed by the statement in Booker
                                                            that mandates review under “ordinary prudential
   1
       In his supplemental brief, Jackson makes the         doctrines” such as “the harmless error doctrine.”
                                       (continued...)       Booker, 125 S. Ct. at 769.

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