                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    May 26, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-40516
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

             CLAYTON HARRIS,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
       for the Eastern District of Texas
             m 4:02-CR-97-ALL
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before SMITH and WIENER,                                   ment error. Harris relies on the fact that he
  Circuit Judges.*                                         did object to the evidence on which the court
                                                           found obstruction. He did not, however,
PER CURIAM:**                                              object that those facts were being decided by
                                                           the court rather than the jury. This was inade-
   This court affirmed the sentence of defen-              quate to preserve the error that Harris now
dant Clayton Harris, whose real name is Clyde              asserts based on Booker.
Bates. United States v. Harris, 96 Fed. Appx.
182 (5th Cir. 2004) (per curiam). The Su-                     Because no Sixth Amendment objection
preme Court vacated and remanded for further               was raised in the district court, we review for
consideration in light of United States v. Book-           plain error. See United States v. Mares, 402
er, 125 S. Ct. 738 (2005). Harris v. United                F.3d 511, 520 (5th Cir. 2005), petition for
States, 125 S. Ct. 1040 (2005). We requested               cert. filed (Mar. 31, 2005) (No. 04-9517).
and received supplemental letter briefs ad-                “An appellate court may not correct an error
dressing the impact of Booker.                             the defendant failed to raise in the district
                                                           court unless there is ‘(1) error, (2) that is plain,
    Harris claims there is error under Booker              and (3) that affects substantial rights.’” Id.
because his sentencing level was increased by              (quoting United States v. Cotton, 535 U.S.
two under the then-mandatory federal sentenc-              625, 631 (2002)).
ing guidelines because the district court, rather
than a jury, made the factual finding that Har-               To show that his substantial rights are af-
ris had engaged in obstruction of justice. The             fected, Harris must “point[] to . . . evidence in
government seems to concede, albeit reluc-                 the record suggesting that the district court
tantly, that this was plain error, and we agree.           would have imposed a lesser sentence under an
                                                           advisory guidelines system.” United States v.
                                                           Taylor, No. 03-10167, 2005 U.S. App. LEXIS
   The government correctly contends the                   8701, at *4 (5th Cir. May 17, 2005) (per cur-
plain error standard of review should apply be-            iam) (citations omitted). Harris points to the
cause Harris did not preserve a Sixth Amend-               fact that the court sentenced him to the lowest
                                                           sentence under the applicable guideline range.
                                                           He refers, however, to no evidence indicating
   *
     Judge Duhé was a member of this panel when            the court’s displeasure with the guidelines
the opinion issued on April 19, 2004. Although he          themselves or with the reasonableness of the
remains a Senior Circuit Judge on this court, he is        sentencing range designated by the guidelines.
currently not hearing cases. Accordingly, this             Thus, he does not demonstrate that the court
matter is decided by a quorum. See 28 U.S.C.               would have imposed a different sentence if it
§ 46(d).                                                   had deemed the guidelines to be only advisory.
   **
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                              The judgment of sentence is AFFIRMED.
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.

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