United States v. Holder

150 F. App'x 347

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 14, 2005
• Docket: 03-50948
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: **

This court affirmed Niguel Deshon Holder’s judgment of conviction. United States v. Holder, 109 Fed. Appx. 673, 674 (5th Cir.2004). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Holder v. United States, — U.S. -, 125 S.Ct. 1093, 160 L.Ed.2d 1061 (2005).

Holder argues that his Booker claim is not subject to plain-error review because his petition for certiorari was pending when Booker was issued. This court applies the plain-error standard of review to unpreserved Booker claims even in cases such as this one. United States v. Cruz, 418 F.3d 481, 482 (5th Cir.2005); United States v. Lewis, 412 F.3d 614, 616 (5th Cir.2005). Holder’s challenge to his sentence fails to meet the plain-error standard because he has not shown that the error affected his substantial rights. See United States v. Mares, 402 F.3d 511, 521 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517).

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 the defendant’s conviction and sentence.

AFFIRMED.

** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.