                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                              November 16, 2005
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 03-41710



UNITED STATES OF AMERICA

                  Plaintiff - Appellee

     v.

MARCUS WASHINGTON

                  Defendant - Appellant


             Appeal from the United States District Court
               for the Eastern District of Texas, Lufkin
                         USDC No. 9:02-CR-00032


         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 the

judgment of conviction and sentence of defendant-appellant Marcus

Washington.     See United States v. Washington, 115 F. A’ppx 205,

205 (5th Cir. Dec. 14, 2004) (per curiam) (unpublished).

Following our judgment, Washington filed a petition for



     *
        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that this opinion should not be published and is not precedent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-
certiorari, in which he challenged the constitutionality of his

sentence under Blakely v. Washington, 542 U.S. 296 (2004).1    The

Supreme Court granted Washington’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).   See Washington v. United States, 125 S. Ct. 2275

(2005).   We requested and received supplemental letter briefs

addressing the impact of Booker.   We now reconsider the matter in

light of Booker and decide to reinstate our previous judgment

affirming Washington’s conviction and sentence.

     In his petition for certiorari, Washington 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   As Washington admits

in his supplemental letter brief, however, he did not make a


     1
        In his petition for certiorari, Washington did not
challenge our prior findings that: (1) his sufficiency of the
evidence claim failed because Washington did not show that the
co-conspirator testimony produced at trial was “incredible as a
matter of law”; and (2) there was sufficient evidence produced at
trial so that a rational trier of fact could have found that the
evidence established guilt beyond a reasonable doubt. See
Washington, 115 F. A’ppx at 205. Accordingly, we will consider
only Washington’s Booker-related Sixth Amendment claim here.
     2
        Specifically, Washington alleged in his petition for
certiorari that the district court committed Sixth Amendment
error when the judge, rather than the jury, made “additional
findings beyond the parameters of the indictment and guilty
finding by the jury” to increase his base offense level.

                                -2-
Booker-related challenge in the district court.    Accordingly,

this court reviews the district court’s imposition of the

enhancements for plain error.    See United States v. Olano, 507

U.S. 725, 732-37 (1993); United States v. Mares, 402 F.3d 511,

520 (5th Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 43

(2005).   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.    See Mares, 402 F.3d

at 520.   When these three conditions are 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.’”    Id. (quoting United States v. Cotton,

535 U.S. 625, 631 (2002)) (internal alteration omitted).

     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, Washington’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.    Washington 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), cert. denied, ---

U.S. ----, 126 S. Ct. 264 (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-
satisfied in this case.    Washington 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 affect 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,

Washington bears the burden of “demonstrat[ing] a probability

‘sufficient to undermine confidence in the outcome.’”     Mares, 402

F.3d at 521 (quoting United States v. Dominguez Benitez, 542 U.S.

74, 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 Washington has demonstrated

that the sentencing court would have reached a different result

had it sentenced Washington under an advisory scheme rather than

a mandatory one.    Bringier, 405 F.3d at 317; Mares, 402 F.3d at

521.

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

judge would have done had the guidelines been advisory.

Washington has pointed to nothing in the record indicating that

the district court would have reached a different conclusion

under an advisory scheme.3   Accordingly, Washington has failed to

       3
        In fact, in his supplemental letter brief, Washington
admits that “[t]here is nothing in the record below that could
support an inference that the sentencing judge would likely
impose a lesser sentence if the case were remanded and he had an

                                 -4-
carry his burden of demonstrating that his sentence likely would

have been different had the district court sentenced him under

the post-Booker advisory regime rather than the pre-Booker

mandatory regime.   We therefore find no plain error.   See

Bringier, 405 F.3d at 318; Mares, 402 F.3d at 522.

     Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance in this case, we

REINSTATE our judgment affirming Washington’s conviction and

sentence.




opportunity to do so.” He further acknowledges “that the
likelihood that a new sentence would differ from the one imposed
is remote.”

                                -5-
