                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                       January 10, 2006

                              _______________________               Charles R. Fulbruge III
                                                                            Clerk
                                    No. 03-40622
                              _______________________

                          UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                      versus

                                  JOSE CHAVARRIA,

                                                           Defendant-Appellant.



             On Appeal from the United States District Court
                    For the Southern District of Texas
                  Corpus Christi Division, No. CR-02-172



           ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES and DENNIS, Circuit Judges.*

PER CURIAM:**

               This   court    affirmed   the   judgment    of   conviction     and

sentence of Jose Chavarria.           United States v. Chavarria, 377 F.3d

475 (5th Cir. 2004).           The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125

S. Ct. 738 (2005).       See Chavarria v. United States, 125 S. Ct. 1055



      *
             Due to his retirement on Dec. 8, 2004, Judge Charles W. Pickering,
Sr. did not participate in this decision. The case is being decided by a quorum.
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opinion should not be published and is not precedent except under the limited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.
(2005).   We requested and received supplemental letter briefs

addressing the impact of Booker.

          At the district court and in his original appeal to this

court, Chavarria objected to the district court’s enhancement for

obstruction of justice. We must first determine if this objection

was sufficient to preserve Booker error.

          To preserve Booker error, a defendant need not explicitly

cite Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),

Blakely v. Washington, 542 U.S.296, 124 S. Ct. 2531 (2004), or the

Sixth Amendment.     See United States v. Akpan, 407 F.3d 360, 376

(5th Cir. 2005).   However, he must “adequately apprise[] the court

that he was raising a constitutional error.”      United States v.

Olis, 429 F.3d 540, 544 (5th Cir. 2005).     The argument must be

couched in terms that the facts used to enhance the sentence were

not proven to a jury beyond a reasonable doubt.     See Akpan, 407

F.3d at 376,   377 (finding that one defendant, who had objected on

reasonable doubt grounds, had preserved Booker error, but finding

that the other, who did not “couch his arguments ... in the same

terms,” did not preserve Booker error); United States v. Bringier,

405 F.3d 310, 315 (concluding that the defendant had not preserved

his Booker objection even though he objected at trial that the

evidence did not support an enhancement because the court did not

“consider his arguments below in the ‘essence’ of Blakely and the

Sixth Amendment”).



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           Both at trial and on appeal, Chavarria objected on the

grounds that the evidence did not sufficiently establish that his

behavior constituted obstruction of justice.    In other words, he

argued that his conduct was an outburst brought on by the pain and

stress of the situation, and not a threat meeting the requirements

for enhancement of sentence because of his obstruction of justice.

His arguments, however, lack in aim, focus, or direction toward

objection on Booker grounds.   They do not apprise the court that

such issues are at stake because they do not reference the need for

those facts to have been proven to a jury beyond a reasonable

doubt.   Accordingly, because Chavarria’s arguments do not “capture

the essence” of Blakely, Booker, Apprendi, and the Sixth Amendment,

they do not serve to preserve Chavarria’s arguments for either

harmless error or plain error review.

           A defendant prevails under plain error review where he

proves (1) that error occurred; (2) that the error is plain; and

(3) that the error affected his substantial rights.    If all three

of those elements exist, a fourth element appears:    A court should

correct the error where it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”        The

burden to prove all of the above falls on the defendant.     United

States v. Olano, 507 U.S. 725, 732-736 (1993).         There is no

question but that Chavarria has met the first two requirements.

See, e.g., United States v. Mares, 402 F. 3d 511, 521 (5th Cir.

2005), cert. denied, 126 S. Ct. 43 (2005) (“Mares’ sentence was

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enhanced based on findings made by the judge that went beyond the

facts admitted by the defendant or found by the jury. . . .            Mares

has therefore established Booker error. Since Booker, the error is

also plain.”)       This circuit’s precedent requires that a defendant

alleging Booker error must meet the third prong by showing that the

sentencing court “would have reached a significantly different

result” under an advisory sentencing scheme rather than a mandatory

one.     Id. at 521.       As Chavarria has not pointed to any such

evidence, he fails the third prong of plain error review.             As in

Taylor, Chavarria cannot survive plain error review, and therefore

cannot satisfy the more demanding “extraordinary circumstances”

standard of review that applies to his particular case.

               Because nothing in the Supreme Court’s Booker decision

requires us to change our prior decision in this case, we adhere to

our    prior    determination   and   therefore   reinstate   our   judgment

AFFIRMING Chavarria’s conviction and sentence.

               AFFIRMED.




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