                                                    United States Court of Appeals
                                                             Fifth Circuit
                                                            F I L E D
                    In the                                    May 31, 2005
United States Court of Appeals                           Charles R. Fulbruge III
          for the Fifth Circuit                                  Clerk
              _______________

                m 03-51205
              _______________




       UNITED STATES OF AMERICA,

                                   Plaintiff-Appellee,

                   VERSUS

         CHARLES PHILLIP SMITH,

                                   Defendant-Appellant.


      _________________________

  Appeal from the United States District Court
       for the Western District of Texas
            m 4:03-CR-165-ALL-H
    ______________________________
          ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before DAVIS, SMITH, and DENNIS,                          31, 2005) (No. 04-9517).
  Circuit Judges.
                                                             “An appellate court may not correct an er-
PER CURIAM:*                                              ror the defendant failed to raise in the district
                                                          court unless there is ‘(1) error, (2) that is plain,
   This court affirmed Charles Smith’s convic-            and (3) that affects substantial rights.’” Id.
tion and sentence. United States v. Smith, 110            (quoting United States v. Cotton, 535 U.S.
Fed. Appx. 380 (5th Cir. 2004) (per curiam).              625, 631 (2002)). The government acknowl-
The Supreme Court vacated and remanded for                edges that there is plain error, so the first two
further consideration in light of United States           prongs are satisfied.
v. Booker, 125 S. Ct. 738 (2005). Smith v.
United States, 125 S. Ct. 1091 (2005). We re-                 With regard to the third prong, under Mar-
quested and received supplemental letter briefs           es, “the defendant rather than the government
addressing the impact of Booker.                          bears the burden of persuasion with respect to
                                                          prejudice.” Mares, 402 F.3d at 521 (citing
   Smith claims there is error under Booker               United States v. Olano, 507 U.S. 725, 734
because his sentencing guideline range was in-            (1993)). To show that his substantial rights
creased by attributing to him the sale of 340.2           are affected, Smith must “point[] to . . . evi-
grams of cocaine; he contends he was only                 dence in the record suggesting that the district
bragging of such a sale and that he never ac-             court would have imposed a lesser sentence
tually sold such a quantity. He contends this is          under an advisory guidelines system.” United
Booker error because the fact of the sale was             States v. Taylor, No. 03-10167, 2005 U.S.
found by the district court rather than being             App. LEXIS 8701, at *4 (5th Cir. May 17,
admitted to by Smith or found by a jury.                  2005) (per curiam) (citations omitted). In oth-
                                                          er words, “the pertinent question is whether
   Although Smith did object to the court’s               [the defendant] demonstrated that the sentenc-
inclusion of the 340.2 grams, he did not raise            ing judgeSSsentencing under an advisory
a Sixth Amendment objection or complain that              scheme rather than a mandatory oneSSwould
the quantity must be decided by a jury if not             have reached a significantly different result.”
admitted to by the defendant. Smith and the               Mares, 402 F.3d at 521.
government correctly agree the plain error
standard of review applies because Smith did                 Smith has presented nothing to satisfy that
not preserve a Sixth Amendment error. See                 burden. Accordingly, the judgments of con-
United States v. Mares, 402 F.3d 511, 520                 viction and sentence are AFFIRMED.
(5th Cir. 2005), petition for cert. filed (Mar.


   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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