                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                        UNITED STATES COURT OF APPEALS
                             For the Fifth Circuit                    June 10, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 03-11333
                               Summary Calendar



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

VERSUS


ANTHONY LEE AARON,

                                            Defendant-Appellant.



             Appeal from the United States District Court
                  For the Northern District of Texas
                           (USDC No. 1:03-CR-29-1)
       ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

       On February 28, 2005, the Supreme Court granted Aaron’s

petition for a writ of certiorari, vacated the prior judgment of

this     court,   and     remanded   this    appeal   to   this    court    for

“consideration in light of United States v. Booker, 543 U.S.___ [,

125 S. Ct. 738] (2005).”       In its remand order the Supreme Court did



  *
   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opinion should not be published and is not precedent except under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.
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                                -2-
not specify which of the two majority opinions set forth in Booker

was the basis for its remand decision.        The Supreme Court did make

clear in its Booker decision that both opinions would be applicable

to all cases pending on direct review or not yet final as of

January 12, 2005.   See Booker, 125 S. Ct. at 769 (citing Griffith

v. Kentucky, 479 U.S. 314, 328 (1987)).        Aaron’s appeal satisfies

those conditions.

      In his original appeal to this court, Aaron claimed only one

ground of error:

           Whether the district court erred by failing to
           apply Application Note 4, U.S.S.G. § 2B5.1,
           that is, the exception to the base offense
           level   15   for  manufacturing    counterfeit
           obligations when the items are “so obviously
           counterfeit that they are not likely to be
           passed.”

Nothing in Booker addresses this claim of error, and Aaron failed

to object in the district court on either of the grounds addressed

in Booker, i.e., (i) a Sixth Amendment violation resulting from an

enhancement of a sentence based on facts (other than a prior

conviction) found by the sentencing judge, which were not admitted

by the defendant or found by the jury; or (ii) that the Sentencing

Guidelines were unconstitutional because they were mandatory and

not   advisory.     Consequently,       we   review   for   plain   error.

FED.R.CRIM.P. 52(b); United States v. Mares, 402 F.3d 511 (5th Cir.

2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

Because the district court did not enhance Aaron’s sentence on the


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basis of any facts found solely by the court, we conclude that

Booker’s Sixth Amendment holding is not applicable to this case.

However, under the Booker holding that changes the Guidelines from

mandatory to advisory, there is error in this case because the

district court viewed and acted under the Sentencing Guidelines as

mandatory   and   not   discretionary.   Applying   our   plain   error

analysis, we conclude: (1) there was error because the district

court operated under a mandatory scheme and not an advisory scheme;

and (2) such error is now plain under Johnson v. United States, 520

U.S. 461, 468 (1997)(holding it is enough that error be plain at

the time of appellate review).     However, under the third prong of

our plain error methodology, i.e., whether the error affects

substantial rights, it is Aaron’s burden to show that, but for the

error of acting on the premise that the Guidelines are mandatory

and not advisory, the district court would have made a different

decision.   Mares, 402 F.3d at 521-22.    In Mares we said that “the

pertinent question is whether [the defendant] demonstrated that the

sentencing judgeSSsentencing under an advisory scheme rather than

a mandatory oneSSwould have reached a significantly different

result.” Id. at 521.    That is, the plain error standard places the

            burden of proof [on the defendant] and re-
            quires “the defendant to show that the error
            actually did make a difference: if it is
            equally plausible that the error worked in
            favor of the defense, the defendant loses; if
            the effect of the error is uncertain so that
            we do not know which, if either, side it
            helped the defendant loses.”

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Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1300 (11th

Cir. 2005)).

     In   fact,   the   record     affirmatively      supports     a    contrary

proposition that the district court, if given the opportunity to

treat the Guidelines as discretionary only, would likely have

imposed the same sentence because the court expressly denied

Aaron’s objection to the PSR on the grounds that it did not

consider Application Note 4 of the commentary to Guideline §

2B5.1(a) and (b); and the court therefore implicitly ruled that the

counterfeit    items    passed    by   Aaron   were    not   “so       obviously

counterfeit that they are not likely to be passed.”              The district

court’s remarks at sentencing demonstrate that the court also

considered the objectives of sentencing identified in subsections

(A)-(D) of 18 U.S.C. § 3553(a)(2). Accordingly, we determine that

Aaron has failed to satisfy the third prong of our plain error

analysis, i.e., that the sentence imposed by the district court

violated his substantial rights.

     We conclude, therefore, that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in this

case. We therefore affirm the conviction and sentence as set by the

trial court.   AFFIRMED.




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