                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                      May 13, 2005
                           FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                                No. 03-40163
                              Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

RONALD WAYNE ABNEY,

                                           Defendant-Appellant.

                          ______________________

             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. L-02-CR-1250-1
                         ______________________

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:*

     Ronald Wayne Abney challenges his sentence for transportation

of an illegal alien.        Although he plead guilty and admitted the

facts underlying his sentence enhancement, he claims that his

sentence was imposed in violation of United States v. Booker.1               We

affirm.


     *
        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this opinion should not be published and is not precedent except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.
     1
         --- U.S. ----, 125 S. Ct. 738 (2005).
                                           I

     Ronald Wayne Abney plead guilty to one count of transportation

of an illegal alien in violation of 8 U.S.C. § 1324.                    At his re-

arraignment, Abney conceded that he had driven a tractor-trailer

through Laredo, Texas, in August with seven illegal aliens in the

back of the trailer.          Based on this admission, the district court

enhanced Abney’s offense level by three on grounds that his conduct

“intentionally or recklessly creat[ed] a substantial risk of death

or serious bodily injury to another person.”2                       The court then

sentenced him to eighteen months’ imprisonment to be followed by

three years’ supervised release.

     We affirmed in an unpublished opinion.                     The Supreme Court

denied Abney’s petition for writ of certiorari, but after Blakely

v. Washington3 granted a timely motion for rehearing vacating our

judgment and remanding for further consideration in light of

Booker.4      We ordered supplemental briefing.

                                           II

     The Government argues on remand that this appeal is moot as

Abney was released from custody on December 12, 2003.                  Abney urges

that an actual controversy still exists because he is subject to

supervised release until December 12, 2006.                  Article III, § 2 of

     2
          U.S. SENTENCING GUIDELINES MANUAL § 2L1.1(b)(5) (2004).
     3
          --- U.S. ----, 124 S. Ct. 2531 (2004).

     4
          See Newsome v. United States, --- U.S. ----, 125 S. Ct. 1112 (2005)
(mem.).

                                           2
the Constitution requires that a “‘case-or-controversy . . .

subsist[] through all stages of federal judicial proceedings, trial

and appellate.’”5       We find that this requirement is met because

Abney is still subject to supervised release, a part of his total

sentence.6

      Turning to the merits, Abney concedes that he failed to raise

a Blakely or Booker-type objection in the district court.                 Thus,

our review is for plain error only.         “We find plain error when: (1)

there was an error; (2) the error was clear and obvious; and (3)

the error affected the defendant's substantial rights.”7                 If all

three conditions are met we have discretion to correct the error;

however, we “ordinarily will not do so unless it affects the

fairness,     integrity,       or    public     reputation      of     judicial

proceedings.”8

      Assuming that the first two prongs of the plain error test are



      5
        United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999) (quoting
Spender v. Kemna,523 U.S. 1, 7 (1998) (citation and internal quotation marks
omitted)).
      6
        See 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of
imprisonment for a felony or a misdemeanor, may include as a part of the sentence
a requirement that the defendant be placed on a term of supervised release after
imprisonment. . . .”); United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir.
2001)(“[S]upervised release, while a form of post-imprisonment supervision, is
still considered to be a component of the defendant’s total sentence.”); United
States v. Benbrook, 119 F.3d 338, 341 n.10 (5th Cir. 1997) (“A period of
supervised release is part of the defendant’s sentence.”).
      7
        United States v. Infante, --- F.3d ----, 2005 WL 639619, at *13 (5th Cir.
March 21, 2005) (citing United States v. Olano, 507 U.S. 725, 732-37 (1993)).
      8
        United States v. Castillo, 386 F.3d 632, 636 (5th Cir. 2004); see Olano,
507 U.S. at 732.

                                       3
satisfied        here,9   Abney   has    failed     to     demonstrate   that   his

substantial rights were affected.                In United States v. Mares, we

found that in order to satisfy the third prong of the plain error

test, the proponent of the error must demonstrate that his sentence

“would have likely been different had the judge been sentencing

under      the   Booker   advisory      regime    rather    then   the   pre-Booker

mandatory regime.”10        Abney points to the district court’s decision

to sentence him to eighteen months’ imprisonment, at the bottom end

of his guidelines range.          The Government replies that the district

court recognized its ability to depart below the guideline range,

as Abney requested, but declined to do so.                     Absent additional

evidence, we cannot say that the trial court would have imposed a

different sentence had the Guidelines been advisory.

      AFFIRMED.


      9
        See United States v. Mares, --- F.3d ----, 2005 WL 503715, at *8 (5th
Cir. March 4, 2005). The Government argues that the trial court did not commit
Booker error because Abney admitted all of the facts necessary to apply the
endangerment enhancement. See Booker, 125 S. Ct. at 756 (“Any fact (other than
a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict
must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.”); United States v. Holmes, --- F.3d ----, 2005 WL 768942, at *17 (April
6, 2005) (finding no Booker error for purposes of sentence enhancement for
committing an offense involving an elected official when the defendant admits at
trial that person involved in offense was an elected official). This argument
raises the question of whether Abney admitted to his mens rea when he admitted
that he transported aliens in a manner that may be considered dangerous. See
Apprendi v. New Jersey, 530 U.S. 466, 493 (2000) (“The defendant's intent in
committing a crime is perhaps as close as one might hope to come to a core
criminal offense ‘element.’”). Because Abney cannot prevail regardless of our
finding on this point, we decline to address this question directly. See United
States v. Solis, 299 F.3d 420, 451 (5th Cir. 2002) (assuming plain error and
disposing of claim on grounds that any such error was harmless).

      10
           Id. at *9.

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