                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                                                                      August 24, 2005
                           FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 03-30676
                              Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

KEITH HUNTER,

                                           Defendant-Appellant.

                          ______________________
              Appeal from the United States District Court
                  for the Eastern District of Louisiana
                         USDC No. 02-CR-281-ALL-I
                          ______________________

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

      Keith Hunter challenges his sentence on grounds that it was

imposed in violation of his Sixth Amendment right to jury trial.

We affirm.

      Hunter pleaded guilty to three counts of trafficking in

cocaine, heroin and marijuana.           He was assessed a base offense

level of thirteen and a criminal history category of IV, resulting

in a Guideline range of 33 to 41 months.                At sentencing, the


      *
        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should not be published and is not precedent except under the limited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.
district court found that Hunter’s “criminal history category does

not adequately reflect the seriousness of his past criminal conduct

of the likelihood that he will commit other crimes.”                The court

then reviewed Hunter’s numerous past drug-related convictions and

prior     arrest    and   concluded     that   a   sentence   of   87   months’

imprisonment was appropriate.

      Hunter appealed his sentence on grounds that there was no

valid basis for the district court’s upward departure, and that the

degree of the departure was excessive.             We held that the district

court erred in relying on Hunter’s prior arrest record, but found

this error to be harmless in light of the court’s further reliance

on the similarity of Hunter’s prior convictions to the present

offense, his failure to satisfy parole requirements, and the lack

of a deterrent effect of prior lesser punishments.1                The Supreme

Court vacated and remanded2 for further consideration in light of

United States v. Booker.3          We requested supplemental letter briefs.

      On remand, Hunter argues that his sentence is illegal under

Booker in three ways.          First, he claims that the district court

calculated his base offense level using marijuana quantities that

were neither charged in the indictment nor admitted as part of his

guilty plea.       Second, he contends that the district court erred by


      1
       United States v. Hunter, No. 03-30676, 2004 WL 1598773 (5th Cir. July 19,
2004) (unpublished).

      2
          Hunter v. United States, 125 S. Ct. 1056 (2005).
      3
          125 S. Ct. 738 (2005).

                                         2
departing upward on the basis of judicial fact-findings regarding

the nature of his prior convictions.             Third, he urges that the

district court erred by treating the Sentencing Guidelines as

mandatory.

     Booker provides that when a judge increases a defendant’s

sentencing range under a mandatory Guidelines regime based on facts

not found by a jury or admitted by the defendant, the resulting

sentence violates the defendant’s Sixth Amendment right to a jury

trial.4     Because Hunter did not object to his sentence on Sixth

Amendment grounds before the district court, our review is for

plain error only.5         “We find 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.”6                   “‘If all three

conditions     are   met   an   appellate   court   may    then    exercise   its

discretion to notice a forfeited error but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’”7

     With respect to Hunter’s first argument, we find that the

district     court   committed     plain    error   when    it    enhanced    his



     4
         See United States v. Bringier, 405 F.3d 310, 316 (5th Cir. 2005).
     5
         See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
     6
        United States v. Infante, 404 F.3d 376, 394-95 (5th Cir. 2005) (citing
United States v. Olano, 507 U.S. 725, 732-37 (1993)).

      7
        Mares, 402 F.3d at 520 (quoting United States v. Cotton, 535 U.S. 625,
631 (2002)).

                                       3
Guidelines range based on facts not admitted by him or found by a

jury.8       However, Hunter has failed to show “with a probability

sufficient to undermine 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

Here, the judge found that even with the enhancement, Hunter’s

Guidelines range failed to reflect the seriousness of his prior

criminal record and the likelihood that he would recidivate.

Further, the court explicitly found that a sentence of 87 months’

imprisonment was “appropriate.”             There is nothing in the record to

indicate that the court would have arrived at a lesser sentence had

it started from a lower “point of departure.”

      Hunter’s       second   point    of       error   is   likewise   unavailing.

Although the court sentenced Hunter under a mandatory Guidelines

regime, it exercised its discretion in crafting a sentence that it

believed would be appropriate in light of the specific nature of

Hunter’s past record.          There is nothing in the record to suggest

that the court would have given a lesser sentence under an advisory

Guidelines regime.10          Lastly, to the extent that Hunter’s third

point of error implies that sentencing under a mandatory Guidelines

      8
           See Infante, 404 F.3d at 394; Mares, 402 F.3d at 520.
      9
           Infante, 404 F.3d at 395.
      10
        Moreover, to the extent that Hunter seeks to revive his challenge to the
district court’s application of the Guidelines in assessing the upward departure,
we find the sentence to be reasonable for the reasons given by the district
court. See United States v. Smith, No. 03-10171, 2005 WL 1663784 (5th Cir. July
18, 2005) (reviewing departure decisions post-Booker for reasonableness).

                                            4
regime constitutes structural error, or that Booker error should be

presumed prejudicial, these arguments have been foreclosed by our

precedent.11

     Based     on   the   foregoing,   we   REINSTATE   our   prior   opinion

affirming the judgment of the district court.




     11
          See United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005).

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