                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 17, 2005
                         _____________________
                                                           Charles R. Fulbruge III
                              No. 03-20948                         Clerk
                            Summary Calendar
                         _____________________

                       UNITED STATES OF AMERICA,

                        Plaintiff - Appellant,

                                versus

                          CHRISTOPHER JONES,

                      Defendant - Appellee.
_________________________________________________________________

          Appeals from the United States District Court
                for the Southern District of Texas
             District Court Cause No. 4:03-CR-19-ALL
_________________________________________________________________

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     This court affirmed Christopher Jones’s conviction and

sentence.1    Jones then sought a writ of certiorari, relying on

the Supreme Court’s decision in United States v. Booker, 125 S.

Ct. 738 (2005).2    The Court granted Jones’s petition, vacated his


     *
      Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
     1
      See United States v. Jones, No. 03-20948, 2004 WL 2980372
(5th Cir. Dec. 23, 2004).
     2
      See Jones v. United States, 125 S. Ct. 1999 (2005).

                                   1
sentence, and remanded for further consideration in light of

Booker.   We requested and received supplemental letter briefs

addressing the impact of Booker.     Having reconsidered our

decision pursuant to the Supreme Court's instructions, we

reinstate our judgment affirming the conviction and sentence.

     Jones was indicted for being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Jones waived his right to a jury trial and was tried before the

court on stipulated facts.   The district court found Jones guilty

and sentenced him to 80 months of imprisonment and three years of

supervised release.3

     In his supplemental brief, Jones advances two arguments.

First, Jones contends that his “constitutional rights were

violated when he was sentenced under a Guidelines range based on

enhancements that were not found by a jury beyond a reasonable

doubt and not admitted by him but were determined by the district

court (presumably) only on a preponderance of the evidence.”

Second, Jones complains that “there was error under Booker

because [he] was sentenced under the assumption of a mandatory

Guidelines system that was held unconstitutional in Booker.”



     3
      This sentence was calculated using a base offense level of
20, a four-point increase for the possession of weapons in
connection with a felony drug offense, and a three-point
reduction for acceptance of responsibility. The sentence also
reflects 12 criminal history points and a criminal history
category of V.

                                 2
     Jones concedes that review is for plain error because he

raised no Booker objection in the district court.4   “An 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.’”5   If all three

conditions are met, then we may exercise our discretion to notice

the error only if it also “‘seriously affects the fairness,

integrity, or public reputation of judicial proceedings.’”6

     “It is clear after Booker that application of the Guidelines

in their mandatory form constitutes error that is plain.”7

Consequently, the first two requirements of the plain error test

are met.    The third prong of the test, however, is not satisfied

in this case.   To demonstrate that his substantial rights were

affected, Jones must show that the district court's error

affected the outcome of the proceedings.8   To meet that burden,

Jones must show “with a probability sufficient to undermine



     4
      See United States v. Mares, 402 F.3d 511, 520 (5th
Cir.2005), petition for cert. filed (Mar. 31, 2005) (No.
04-9517). Jones raised an argument on direct appeal in this
court based on Blakely v. Washington, 542 U.S. 296 (2004).
     5
      Mares, 402 F.3d at 520 (quoting United States v. Cotton,
535 U.S. 625, 631 (2002)).
     6
      Id.
     7
      United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir. 2005).
     8
      United States v. Olano, 507 U.S. 725, 734-35 (1993).

                                  3
confidence in the outcome, that if the judge had sentenced him

under an advisory sentencing regime rather than a mandatory one,

he would have received a lesser sentence.”9   That is, Jones must

point to some “indication in the record from the sentencing

judge’s remarks or otherwise” that the sentencing judge “would

have reached a different conclusion” under an advisory sentencing

scheme.10

     Jones concedes that nothing in the record indicates that the

district judge would have imposed a different sentence under an

advisory scheme, but argues for the first time on remand that due

process and ex post facto concerns require us to vacate and

remand to the district court for resentencing.   Jones recognizes

that this argument is foreclosed by the court’s decision in

United States v. Scroggins,11 but makes this argument to preserve

it for Supreme Court review.

     Jones also contends that plain error review should not apply

because error applying the mandatory Guidelines scheme was


     9
      United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005).
     10
          Mares, 402 F.3d at 522.
     11
      411 F.3d 572, 576 (5TH Cir. 2005)(rejecting the appellant’s
argument that applying Justice Breyer’s remedial decision in
Booker, demoting the previous mandatory sentencing scheme to an
advisory scheme, violated the appellant’s protection against ex
post facto laws created by judicial enlargement); see also United
States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005) (rejecting
the same argument and reviewing for plain error because the
argument was raised for the first time on appeal).

                                    4
structural in nature and affected the entire framework of the

sentencing in his case.   Jones maintains that the court should

presume prejudice and reverse his sentence.   He recognizes,

however, that this characterization is contrary to the court’s

determination in Mares and raises the argument to preserve it for

Supreme Court review.12

     Because nothing in the record indicates that the district

judge would have imposed a lesser sentence under an advisory

sentencing scheme, Jones has not shown that his rights were

substantially affected and has failed to demonstrate plain error.

Accordingly, we conclude that nothing in the Supreme Court's

Booker decision requires us to change our prior affirmance in

this case.   We therefore reinstate our judgment affirming the

defendant's conviction and sentence.




     12
      See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005) (rejecting the appellant’s argument that the district
court’s application of the Sentencing Guidelines as mandatory is
a structural error insusceptible to plain error review because
the argument is inconsistent with this court’s analysis in Mares
and United States v. Villegas, 404 F.3d 355, 364 (5th Cir.
2005)).

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