                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    June 3, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-51163
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

        MICHAEL EDWARD TUBBS,
      ALSO KNOWN AS MICHAEL TUBBS,

                                   Defendant-Appellant.




      _________________________

  Appeal from the United States District Court
       for the Western District of Texas
               m W:03-CR-69-1
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH, DEMOSS, and STEWART,                         (quoting United States v. Cotton, 535 U.S.
  Circuit Judges.                                          625, 631 (2002)).

PER CURIAM:*                                                  The government seems to acknowledge that
                                                           there is plain error, so the first two prongs are
   This court affirmed the sentence of Michael             satisfied. To show that his substantial rights
Tubbs. United States v. Tubbs, 96 Fed. Appx.               are affected, Tubbs must “point[] to . . . evi-
257 (5t h Cir. 2004) (per curiam). The Su-                 dence in the record suggesting that the district
preme Court vacated and remanded for further               court would have imposed a lesser sentence
consideration in light of United States v. Book-           under an advisory guidelines system.” United
er, 125 S. Ct. 738 (2005). Tubbs v. United                 States v. Taylor, No. 03-10167, 2005 U.S.
States, 125 S. Ct. 1054 (2005). We requested               App. LEXIS 8701, at *4 (5th Cir. May 17,
and received supplemental letter briefs ad-                2005) (per curiam) (citations omitted).
dressing the impact of Booker.
                                                               In his supplemental brief, Tubbs “admits
    Tubbs claims there is error under Booker               that there is nothing on this record that indi-
because the district court, rather than a jury,            cates that the sentencing judge . . . was dissat-
made a finding regarding the quantity of drugs             isfied about the application of the Guidelines in
attributable to him. Although Tubbs did object             this particular case.” Tubbs contends, how-
to the court’s inclusion of the so-called                  ever, that “there is evidence of his dissatisfac-
“bones” in the drug quantity, he did not raise             tion with the entire scheme overall,” as al-
a Sixth Amendment objection or complain that               legedly shown by the fact that the judge was
the quantity must be decided by a jury if not              “one of the first District Judges in the Nation
admitted to by the defendant.                              to declare the sentencing Guidelines unconsti-
                                                           tutional in the wake of Blakely.” This is an
   The government correctly contends the                   inadequate showing “that the sentencing
plain error standard of review should apply be-            judgeSSsentencing under an advisory scheme
cause Tubbs did not preserve a Sixth Amend-                rather than a mandatory oneSSwould have
ment error. See United States v. Mares, 402                reached a significantly different result.”
F.3d 511, 520 (5th Cir. 2005), petition for                Mares, 402 F.3d at 521.
cert. filed (Mar. 31, 2005) (No. 04-9517).
“An appellate court may not correct an error                  The judgment of sentence is AFFIRMED.
the defendant failed to raise in the district
court unless there is ‘(1) error, (2) that is plain,
and (3) that affects substantial rights.’” Id.


   *
     Pursuant to 5TH CIR. R. 47.5, the court has de-
termined 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.

                                                       2
