                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 27, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-30103
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JAMIE SMITH, also known as Papoose, also known as Pap,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                 for the Western District of Louisiana
                        USDC No. 5:01-CR-50070-2

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     This court affirmed the sentence of Jamie Smith.        United

States v. Smith, 111 Fed. Appx. 280 (5th Cir. 2004) (per curiam)

(copy at R. 1, 295-96).     The Supreme Court vacated and remanded

for further consideration in light of United States v. Booker,

125 S. Ct. 738 (2005).     Smith v. United States, 125 S. Ct. 1063

(2005).     This court requested and received supplemental letter

briefs addressing the impact of Booker.



     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-30103
                                -2-

     Smith contends there is Sixth Amendment error under Booker

because the district court, rather than a jury, made findings

regarding his role in the offense and the quantity of drugs

attributable to him.   To the extent his sentence could have been

based solely on his career-offender status, he contends that the

district court erred by applying the guidelines as mandatory.

     Smith concedes, and the record confirms, that he did not

preserve his Booker issues by objection in the district court.

Accordingly, his contentions are reviewed only for plain error.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th

Cir. 2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir.

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

9517).

     To establish plain error, Smith must show (1) an error, (2)

that is clear or obvious, and (3) that affects his substantial

rights.   See United States v. Olano, 507 U.S. 725, 732 (1993);

Mares, 402 F.3d at 520.   “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.”   Mares, 402 F.3d at 520 (internal quotation marks

omitted).   To satisfy the third part of the test Smith must

demonstrate that the sentence “would have likely been different

had the judge been sentencing under the Booker advisory regime

rather than the pre-Booker mandatory regime.”   See id. at 521-22.
                             No. 04-30103
                                  -3-

     If Smith’s sentence were deemed to be based on his career-

offender status alone, the principles of Booker would not apply.

See United States v. Guevara, __F.3d__. No. 03-11299, 2005 WL

1009772, *6 (5th Cir. May 2, 2005).    Nonetheless, to the extent

the court applied the guidelines as mandatory or based Smith’s

sentence on its own determination of the relevant drug quantity

and Smith’s role in the offense, the court committed errors that

were clear and obvious.     See Valenzuela-Quevedo, 407 F.3d at 733;

Mares, 402 F.3d at 521.

     With respect to the third part of the test, Smith points to

the sentencing court’s explicit intention to impose the minimum

sentence as proof that the court would have imposed a lesser

sentence under advisory guidelines.    Imposition of the minimum

guidelines sentence does not establish that the court would have

imposed a lesser sentence.     United States v. Bringier, 405 F.3d

310, 317 (5th Cir. 2005).    Moreover, the sentencing judge stated

that a 30-year sentence reflects the seriousness of the offense

and Smith’s criminal history.    The court’s statement suggests

that it would not have imposed a sentence of less than 360 months

under advisory guidelines.    Smith fails to demonstrate plain

error.

     The judgment is AFFIRMED in all respects except for the

imposition of a $100 special assessment on Count 24.    As in our

prior opinion, that part of the judgment is MODIFIED to reflect a

conviction on Count 1 only and a special assessment of only $100.
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                               -4-

Any money paid by Smith toward the erroneous special assessment

should be refunded.

     AFFIRMED IN PART; MODIFIED IN PART.
