United States v. Chappell

Fifth Circuit

United States v. Chappell

136 F. App'x 684

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 27, 2005

Docket03-41609

StatusUnpublished

This text of 136 F. App'x 684 (United States v. Chappell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Chappell, 136 F. App'x 684 (5th Cir. 2005).

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Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

On a previous appeal, we affirmed William John Chappell’s conviction and sentence for being a felon in possession of a firearm. United States v. Chappell, 113 Fed.Appx. 643, No. 03-41609, 2004 WL 2617982 (5th Cir.2004). He sought — and the Supreme Court granted — a writ of certiorari. The Supreme Court vacated the judgment and remanded the case for fur *685 ther consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Chappell failed to raise a Booker claim before the district court. Thus, we review his sentence for plain error. United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Under plain error, this court may only correct a defendant’s sentence if there is an: (1) error; (2) that is plain; (3) that affects substantial rights; and (4) the. error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); see also Fed.R.CrimP. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”).

To show reversible plain error under Booker, the petitioner must “demonstrate[] that the sentencing judge — sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” Mares, 402 F.3d at 521. “[I]f it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side is helped, the defendant loses.” Id. Chappell concedes that he cannot show that he would have received a lower sentence had the Guidelines been advisory rather than mandatory.

Accordingly, we conclude that nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case. We therefore reinstate our judgment affirming Chappell’s conviction and sentence.

*

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.

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

On a previous appeal, we affirmed William John Chappell’s conviction and sentence for being a felon in possession of a firearm. United States v. Chappell, 113 Fed.Appx. 643, No. 03-41609, 2004 WL 2617982 (5th Cir.2004). He sought — and the Supreme Court granted — a writ of certiorari. The Supreme Court vacated the judgment and remanded the case for fur *685 ther consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Chappell failed to raise a Booker claim before the district court. Thus, we review his sentence for plain error. United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Under plain error, this court may only correct a defendant’s sentence if there is an: (1) error; (2) that is plain; (3) that affects substantial rights; and (4) the. error seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); see also Fed.R.CrimP. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”).

To show reversible plain error under Booker, the petitioner must “demonstrate[] that the sentencing judge — sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” Mares, 402 F.3d at 521. “[I]f it is equally plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error is uncertain so that we do not know which, if either, side is helped, the defendant loses.” Id. Chappell concedes that he cannot show that he would have received a lower sentence had the Guidelines been advisory rather than mandatory.

Accordingly, we conclude that nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case. We therefore reinstate our judgment affirming Chappell’s conviction and sentence.

*

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.

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