                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                        UNITED STATES COURT OF APPEALS
                             For the Fifth Circuit                    April 20, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                 No. 03-41244
                               Summary Calendar



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

VERSUS


NOELIA CAMPOS MADRIGAL,

                                            Defendant-Appellant.



             Appeal from the United States District Court
                  For the Southern District of Texas
                            (C-03-CR-109-1)



       ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

       On January 24, 2005, the Supreme Court granted Madrigal’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opinion should not be published and is not precedent except under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.
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)).     Madrigal’s      appeal

satisfies those conditions.

      In her original appeal to this court, Madrigal claimed two

grounds of error: first, erroneous application of the safety valve

provision of the Sentencing Guidelines; and second, her assertion

that 21 U.S.C. § 841 was unconstitutional on the basis of Apprendi

v. New Jersey, 530 U.S. 466 (2000).            Nothing in Booker addresses

either of these claims of error, and Madrigal 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.                Because the district

court did not enhance Madrigal’s sentence on the 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 Congress originally intended the Guidelines

to be advisory and not mandatory, there is error in this case

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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 Madrigal’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.                  In United States v. Mares, 2005

U.S. App. LEXIS 3653, at *27-*28 (5th Cir. Mar. 4, 2005), we said

that “the pertinent question is whether [the defendant] dem-

onstrated that the sentencing judgeSSsentencing under an advisory

scheme    rather      than    a   mandatory         oneSSwould     have     reached     a

significantly different result.” 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.”


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


                                             3
Cir. 2005)).

     In fact, the record affirmatively supports the 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 Madrigal’s request

for a sentence at the bottom of the Guideline range.   The district

court’s remarks at sentencing demonstrate that the court also

explicitly considered the objectives of sentencing identified in

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

determine that Madrigal has failed to satisfy the third prong of

our plain error analysis, i.e., that the sentence imposed by the

district court violated her 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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