                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    June 2, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-41422
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

         QUINCY V. GILFORD, JR.,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
      for the Southern District of Texas
             m C:03-CR-81-ALL
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before JOLLY, JONES, and SMITH,                            “absent extraordinary circumstances, we will
  Circuit Judges.                                          not consider . . . Booker-related arguments . . .
                                                           raised for the first time in a petition for [writ
PER CURIAM:*                                               of] certiorari.” United States v. Taylor, No.
                                                           03-10167, 2005 U.S. App. LEXIS 8701, at *3
   This court affirmed Quincy Gilford, Jr.’s,              (5th Cir. May 17, 2005) (per curiam). As we
conviction and sentence. United States v. Gil-             discuss below, there is no inequity here that
ford, 95 Fed. Appx. 549 (5th Cir. 2004) (per               would make this case “extraordinary.”
curiam). The Supreme Court vacated and re-
manded for further consideration in light of                   “Because [the defendant] did not raise his
United States v. Booker, 125 S. Ct. 738                    Booker-related arguments in the district court,
(2005). Gilford v. United States, 125 S. Ct.               had he raised these challenges in this court
1011 (2005). We requested and received sup-                before the decision issued on his direct appeal,
plemental letter briefs addressing the impact of           we would have reviewed them for plain error.”
Booker.                                                    Id. at *3-*4 (citation omitted). For any find-
                                                           ings made by the judge in violation of Booker,
    Gilford claims there is error under Booker             it is undisputed that, as we have said, Gilford
because the district court, rather than a jury,            did not raise a Sixth Amendment objection or
made the finding that he possessed a firearm in            complain that the facts at issue must be de-
connection with the felony offense of pos-                 cided by a jury if not admitted to by the defen-
session of crack cocaine, which finding re-                dant. So, the plain error standard of review
sulted in a four-level enhancement under                   applies because Gilford did not preserve a
U.S.S.G. § 2K2.1(b)(5). At sentencing, Gil-                Sixth Amendment error. See United States v.
ford unsuccessfully contended that he pos-                 Mares, 402 F.3d 511, 520 (5th Cir. 2005),
sessed the weapon to commit suicide and that               petition for cert. filed (Mar. 31, 2005)
the cocaine was for personal use only. In his              (No. 04-9517).
petition for writ of certiorari, Gilford argued
for the first time that the finding by a judge,               “An appellate court may not correct an er-
rather than by a jury or based on his own ad-              ror the defendant failed to raise in the district
missions, violated Blakely v. Washington, 124              court unless there is ‘(1) error, (2) that is plain,
S. Ct. 2531 (2004), on which Booker largely                and (3) that affects substantial rights.’” Id.
relied.                                                    (quoting United States v. Cotton, 535 U.S.
                                                           625, 631 (2002)). The first two prongs are
   In considering a case that has been remand-             satisfied: There is plain error, because the
ed for further review in light of Booker, and              four-level enhancement was made on the basis
                                                           of judge-made factfinding.

   *                                                           With regard to the third prong, under Mar-
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                           es, “the defendant rather than the government
termined that this opinion should not be published
and is not precedent except under the limited
                                                           bears the burden of persuasion with respect to
circumstances set forth in 5TH CIR. R. 47.5.4.             prejudice.” Mares, 402 F.3d at 521 (citing

                                                       2
United States v. Olano, 507 U.S. 725, 734
(1993)). To show that his substantial rights
are affected, Gilford must “point[] to . . . evi-
dence in the record suggesting that the district
court would have imposed a lesser sentence
under an advisory guidelines system.” Taylor,
2005 U.S. App. LEXIS 8701, at *4 (citations
omitted). In other words, “the pertinent ques-
tion is whether [the defendant] demonstrated
that the sentencing judgeSSsentencing under
an advisory scheme rather than a mandatory
oneSSwould have reached a significantly dif-
ferent result.” Mares, 402 F.3d at 521.

   Gilford has presented nothing to satisfy that
burden. The district court sentenced at the top
end of the guideline range (57 months) and an-
nounced that it was even considering an up-
ward departure in the criminal history category
from III to IV. This shows that the court was
not influenced by any factual findings that may
have affected the calculation of the range.
   Finally, Gilford contends that no showing
of prejudice or detriment to his substantial
rights is required, because Booker error “is
clearly a structural error because it affected the
entire framework within which Mr. Gilford’s
sentencing proceeded.” 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) (unpublished). “[W]e reject [the]
argument that Booker error is structural and
insusceptible to harmless error analysis, and
that Booker error should be presumed preju-
dicial, as both claims are in conflict with
Mares.” United States v. Malveaux, 2005
U.S. App. LEXIS 5960, at * 4 n.9 (5th Cir.
Apr. 11, 2005) (per curiam) (unpublished).

  The judgment of conviction and sentence is
AFFIRMED.


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