                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  August 1, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-30071
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

VERONA L. JOHNSON,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                 for the Western District of Louisiana
                         USDC No. 5:02-CR-50050
                          --------------------

         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:**

     Citing two enhancements, the district court sentenced Verona

Johnson to 41 months, the top of the 33 to 41-month Guidelines

range.     Johnson appealed one of the enhancements, and we remanded

for further findings.     The district court made those findings and

adhered to its previous determination of the Guidelines range,

but sentenced Johnson to 33 months, citing her good behavior in

     *
       This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 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this opinion should not be published and is not precedent except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.
                            No. 04-30071
                                 -2-

prison.    Johnson appealed, for the first time raising a Sixth

Amendment/Blakely claim, we affirmed citing circuit precedent,

and the Supreme Court vacated and remanded for further

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005).

       As Johnson concedes, we review for plain error because she

did not object to her sentence in district court on Sixth

Amendment grounds.    United States v. Mares, 402 F.3d 511, 520

(5th Cir. 2005).    Hence she must show an obvious error that

“affect[s] [her] substantial rights” and “seriously affect[s] the

fairness, integrity, or public reputation of judicial

proceedings.”    United States v. Olano, 507 U.S. 725 (1993).     A

Booker error affects a defendant’s substantial rights if the

sentencing judge, sentencing under an advisory scheme, would have

reached a significantly different result.    Mares, 402 F.3d at

521.

       Although, as the Government concedes, there was clear Booker

error here, Johnson cannot show that the district judge would

have given a lower sentence under an advisory scheme.    In support

of her contention otherwise, she points only to the sentencing

judge’s statement at sentencing on remand that

       there are limits set out by the guidelines as to what I
       can sentence you since I have found the enhancement for
       obstruction of justice applicable. When you were here
       before, I sentenced you to 41 months. In view of your
       history [in prison].... Accordingly, I’m going to
       reduce the sentence to the bottom of the guidelines and
       order you committed to the custody of the Bureau of
       Prisons for a term of 33 months.
                           No. 04-30071
                                -3-

This statement reveals no express desire to sentence Johnson

below the Guidelines range.   Although it could be read to reflect

an implicit desire to do so, it is more easily read as a

statement of fact - the Guidelines provide “limits,” still true

post-Booker - explaining the choice of 33 months out of all

possibilities.   Moreover, there is no indication that a downward

departure would have been justified under an advisory scheme

after consideration of 18 U.S.C. § 3553(a), given the record and

the district court’s reliance only on post-offense conduct to

explain its 33-month sentence, see United States v. Desselle, 450

F.3d 179, 182 (5th Cir. 2006); Mares, 402 F.3d at 519, and we

read the district court’s statement in light of that.

     Consequently, the judgment of conviction and sentence are

REINSTATED.
