                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                           October 13, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                  02-21017
                              Summary Calendar


                          UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

                              JOE BOB MONCRIEF,

                                                      Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                          (4:00-CR-00544-6)

      ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, Circuit Judge, and LYNN,* District Judge.**

PER CURIAM:***

     In    late   2004,     this   court   affirmed   Joe   Bob    Moncrief’s

convictions of conspiracy, in violation of 18 U.S.C. §§ 371 &

1956(h); of two counts of bank fraud, in violation of 18 U.S.C. §

1344; of five counts of illegal money transactions, in violation of

18 U.S.C. § 1957(a); and of nine counts of money laundering, in


     *
      District Judge of the Northern District of Texas, sitting by
designation.
     **
      Judge Pickering was a member of this panel when the opinion
issued on 1 November 2004, but subsequently retired. Accordingly,
this matter is decided by a quorum. See 28 U.S.C. § 46(d).
     ***
       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this opinion should not be published and is not precedent except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.
violation of 18 U.S.C. § 1956(a)(1).              United States v. Moncrief,

133 F. App’x 924, 932 (5th Cir. 2004).                  It also affirmed his

sentence to 210 months imprisonment.                  Id.   The Supreme Court

granted Moncrief’s petition for writ of certiorari; vacated our

judgment; and remanded the case for further consideration in the

light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005).    Moncrief v. United States, 125 S. Ct. 2273 (2005).                 We

requested, and received, supplemental briefs addressing the impact

of Booker.      Having reconsidered our decision pursuant to the

Supreme Court’s instructions, we reinstate our judgment affirming

the conviction, but remand for resentencing.

      Moncrief raised Booker-error for the first time on appeal;

therefore, our review is only for plain error.              See United States

v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.

denied, ___ S. Ct. ___, 2005 WL 816208 (U.S. 3 Oct. 2005) (No. 04-

9517).    Plain error review permits an appellate court to correct a

forfeited issue only when, inter alia, there is “(1) error (2) that

is plain and (3) that affects substantial rights”.                United States

v.   Cotton,   535   U.S.   625,   631       (2002)   (citation   and   internal

quotations marks omitted).         Because the district court sentenced

Moncrief under the mandatory Guidelines held unconstitutional in

Booker, the first two prongs are satisfied.                  United States v.

Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005), petition for



                                         2
cert. denied, ___ S. Ct. ___, 2005 WL 1811485 (U.S. 3 Oct. 2005)

(No. 05-5556). As discussed infra, Moncrief has shown “the outcome

would have been different if the district court had been operating

under an advisory system”, United States v. Holmes, 406 F.3d 337,

365 (5th Cir. 2005), petition for cert. denied, ___ S. Ct. ___,

2005 WL 2414188 (U.S. 3 Oct. 2005) (No. 05-38); accordingly, he has

also satisfied the third prong of plain-error review.

     Moncrief met his burden of showing his substantial rights were

affected by “demonstrat[ing] a probability ‘sufficient to undermine

confidence in the outcome’” of his sentencing.   Mares, 402 F.3d at

521 (quoting United States v. Dominguez Benitez, 124 S. Ct. 2333,

2340 (2004)).   At sentencing, the district court stated that,

although a review of Moncrief’s life made the sentencing “all the

more heart-breaking”, the court was unable to grant a downward

departure because of the constraints imposed by the Guidelines.

The sentencing judge imposed the minimum term of imprisonment

allowed under the Guidelines.

     United States v. Pennell, 409 F.3d 240 (5th Cir. 2005),

considered similar language from a defendant’s sentencing hearing,

at which the district court stated:

          Once again, I say that from many standpoints
          of fairness and justice, it might be better to
          sentence people based on actual loss, but I
          don’t think that’s the way the guidelines are
          written or the appellate courts interpreted
          them in most cases. So I feel constrained to
          overrule your objection.

                                3
Id. at 245 (emphasis added).        There, the court imposed the lowest

sentence possible under the then-mandatory Guidelines. Id. at 246.

On appeal, our court remanded the case for resentencing, after

interpreting the district court’s statement to show that, “had [the

judge] been free to do so[,] he would have selected a different

loss figure which would have resulted in a lesser sentence”.               Id.

     The   language   used    by   the    district   court    at   Moncrief’s

sentencing is sufficiently similar to the district court’s in

Pennell.   Because Moncrief likely would have received a different

sentence, had the judge not felt constrained by the then-mandatory

Guidelines, Moncrief has satisfied the third prong of the plain

error test.     See id. (noting it was “likely” that the district

court would have imposed a lesser sentence had the judge not been

bound under the mandatory Guidelines).

     Even though Moncrief has satisfied these three prongs, we have

discretion whether to correct plain error; generally we will not do

so unless the error “seriously affected the fairness, integrity or

public reputation of judicial proceedings”.           Id.    In this regard,

because the plain error likely increased his sentence, Moncrief has

made the requisite showing.

     Finally, as recognized by this court on plain error review on

direct appeal:    the district court committed clear error by using

the 2000 edition of the Sentencing Guidelines, rather than the 2001

edition,   in   determining   the    applicable      Guidelines    range   for


                                      4
Moncrief’s   sentence;    but     Moncrief   failed   to   show   such   error

affected his substantial rights.         Moncrief, 133 F. App’x at 939.

(Moncrief now appears to urge his sentence should be imposed in the

light of the   2002 edition.)        Although the Supreme Court limited

its remand to this court for further consideration in the light of

Booker, 125 S. Ct. At 738, we are confident that, on remand, the

district court will consider the correct edition of the Guidelines

in resentencing Moncrief.

     Therefore,     we   AFFIRM    Moncrief’s    conviction;      VACATE   his

sentence; and REMAND for resentencing consistent with Booker.



                  AFFIRMED IN PART; VACATED IN PART; AND REMANDED
