                                                            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. 03-41053
                            Conference Calendar



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee

     v.

JED STEWART LINEBERRY,

                  Defendant - Appellant


             Appeal from the United States District Court
                   for the Eastern District of Texas


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     In our previous opinion in this case, we affirmed Appellant

Lineberry’s    conviction    and   sentence.      See   United    States     v.

Lineberry, No. 03-41053, 93 Fed. Appx. 632 (5th Cir. 2004) (per

curiam) (unpublished).      Following our judgment, Lineberry filed a

petition for certiorari.       The Supreme Court granted Lineberry’s



     *
      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this opinion should not be published and is not precedent except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-
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).     We now reconsider the

matter in light of Booker and decide to reinstate our previous

judgment affirming Lineberry’s conviction and sentence.

     Lineberry raised a Booker-related challenge to his sentence

for the first time on direct appeal.      Because Appellant made no

Booker objection in the district court, however, Appellant’s claim

must fail under the plain-error test discussed in United States v.

Mares, 402 F.3d 511, 520-22 (5th Cir. 2005).2

     Lineberry also argues that application of Justice Breyer’s

remedial opinion in Booker would strip him of his constitutional

protections against ex post facto laws.   He explains that Apprendi

gave him the right to a jury trial on all facts essential to his

sentence and Justice Breyer’s remedial opinion in Booker stripped

that right away.   In United States v. Scroggins, 411 F.3d 572, 575-

76 (5th Cir. 2005) we rejected that argument and held that Booker

required us to apply both Justice Stevens’ merits opinion and

Justice Breyer’s remedial opinion in Booker to all cases such as

this one on direct review.

     For the reasons stated above, our prior disposition remains in

effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Lineberry’s


     2
          There is no indication that the district court, if
given the opportunity to treat the guidelines as advisory only,
would have imposed a lesser sentence.

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conviction and sentence.




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