                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT                    December 7, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 06-30487
                               Summary Calendar


UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

JOHN MICHAEL MCCONNELL,

                                            Defendant-Appellant.

                            --------------------
               Appeal from the United States District Court
                   for the Western District of Louisiana
                         USDC No. 5:04-CR-50083-ALL
                            --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

       John      Michael   McConnell      challenges   his   sentence       for

misapplication of funds by a bank employee under 18 U.S.C. § 656.

Citing our precedent under United States v. Booker,1 McConnell

asserts that the district court erred by increasing his sentence

based upon facts that were neither proven to a jury nor admitted by

him.       Because he did not raise the    objection below, we review this

issue for plain error.2        McConnell must demonstrate (1) an error,

       *
        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opinion should not be published and is not precedent except under the limited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
        543 U.S. 220 (2005).
       2
       See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005).
                                    No. 06-30487
                                         -2-

(2) that is plain, and (3) that affects his substantial rights.3

If these conditions are satisfied, we may exercise our discretion

to   correct    the   error    if   it    “seriously     affects    the    fairness,

integrity,     or     public    reputation      of     judicial     proceedings.”4

(internal quotation marks and citation omitted).

       The district court increased McConnell’s sentence based upon

a    factual   finding   and      under   the   belief    that     the    Sentencing

Guidelines were mandatory, so the error is plain.5                          However,

McConnell has failed to show that “the sentencing judge--sentencing

under an advisory scheme rather than a mandatory one--would have

reached a significantly different result.”6

       McConnell’s best evidence is from the sentencing hearing,

where the district court remarked:

       If I sentence you for less than the guidelines, under the
       present system, [the AUSA] has to report me to the
       Attorney General. And the Attorney General has to report
       me to the chairman of the House Judiciary Committee and
       Senate Judiciary Committee and say that Judge Stagg
       departed downward without legal authority.


However, the very same Judge, in denying McConnell’s motion for

release pending appeal, rejected his Booker arguments, reasoning

that “there is no indication that McConnell’s sentence would have

been different under an advisory guidelines scheme as opposed to a



       3
        Id.
       4
        Id.
       5
        See Mares, 402 F.3d at 520-21.
       6
        Mares, 402 F.3d at 521.
                                 No. 06-30487
                                      -3-

mandatory one.”     We hold that this most recent statement by the

district court is dispositive of the substantial-rights question.

This holding follows Smith, where we held that such a statement,

made in the context of a district court’s denial of a § 2255 motion

to vacate, indicated “the indisputable message” that “the court

stands by its original sentence, even after Booker.”7               Because

McConnell   has   failed    to    show   that   the   error   affected   his

substantial rights, he cannot demonstrate that the district court

committed plain error.8

     The judgment of the district court is AFFIRMED.




     7
      United States v. Smith, 442 F.3d 868, 871 (5th Cir. 2006).
     8
      See Mares, 402 F.3d at 520-21.
