United States v. McConnell

Fifth Circuit

United States v. McConnell

208 F. App'x 338

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 7, 2006

Docket06-30487

StatusUnpublished

This text of 208 F. App'x 338 (United States v. McConnell) 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.

Bluebook

United States v. McConnell, 208 F. App'x 338 (5th Cir. 2006).

Pincite

Opinion

PER CURIAM: *

John Michael McConnell challenges his sentence for misapplication of funds by a bank employee under 18 U.S.C. § 656. Citing our precedent under United States v. Booker, 1 McConnell asserts that the district court erred by increasing his sentence based upon facts that were neither proven to a jury nor admitted by him. Because he did not raise the objection below, we review this issue for plain error. 2 McConnell must demonstrate (1) an error, (2) that is plain, and (3) that affects his substantial rights. 3 If these conditions are satisfied, we may exercise our discretion to correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 4 (internal quotation marks and citation omitted).

The district court increased McConnell’s sentence based upon a factual finding and under the belief that the Sentencing Guidelines were mandatory, so the error is plain. 5 However, McConnell has failed to show that “the sentencing judge— sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” 6 McConnell’s best evidence is from the sentencing hearing, where the district court remarked:

If I sentence you for less than the guidelines, under the present system, [the AUSA] has to report me to the Attorney General. And the Attorney General has to report me to the chairman of the House Judiciary Committee and Senate *340 Judiciary Committee and say that Judge Stagg departed downward without legal authority.

However, the very same Judge, in denying McConnell’s motion for release pending appeal, rejected his Booker arguments, reasoning that “there is no indication that McConnell’s sentence would have been different under an advisory guidelines scheme as opposed to a mandatory one.” We hold that this most recent statement by the district court is dispositive of the substantial-rights question. This holding follows Smith, where we held that such a statement, made in the context of a district court’s denial of a § 2255 motion to vacate, indicated “the indisputable message” that “the court stands by its original sentence, even after Booker.” 7 Because McConnell has failed to show that the error affected his substantial rights, he cannot demonstrate that the district court committed plain error. 8

The judgment of the district court is 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.

1

. 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

2

. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,-U.S.-, 126 S. Ct. 43, 163 L.Ed.2d 76 (2005).

3

. Id.

4

5

. See Mares, 402 F.3d at 520-21.

6

. Mares, 402 F.3d at 521.

7

. United States v. Smith, 442 F.3d 868, 871 (5th Cir.2006).

8

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM: *

John Michael McConnell challenges his sentence for misapplication of funds by a bank employee under 18 U.S.C. § 656. Citing our precedent under United States v. Booker, 1 McConnell asserts that the district court erred by increasing his sentence based upon facts that were neither proven to a jury nor admitted by him. Because he did not raise the objection below, we review this issue for plain error. 2 McConnell must demonstrate (1) an error, (2) that is plain, and (3) that affects his substantial rights. 3 If these conditions are satisfied, we may exercise our discretion to correct the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 4 (internal quotation marks and citation omitted).

The district court increased McConnell’s sentence based upon a factual finding and under the belief that the Sentencing Guidelines were mandatory, so the error is plain. 5 However, McConnell has failed to show that “the sentencing judge— sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” 6 McConnell’s best evidence is from the sentencing hearing, where the district court remarked:

If I sentence you for less than the guidelines, under the present system, [the AUSA] has to report me to the Attorney General. And the Attorney General has to report me to the chairman of the House Judiciary Committee and Senate *340 Judiciary Committee and say that Judge Stagg departed downward without legal authority.

However, the very same Judge, in denying McConnell’s motion for release pending appeal, rejected his Booker arguments, reasoning that “there is no indication that McConnell’s sentence would have been different under an advisory guidelines scheme as opposed to a mandatory one.” We hold that this most recent statement by the district court is dispositive of the substantial-rights question. This holding follows Smith, where we held that such a statement, made in the context of a district court’s denial of a § 2255 motion to vacate, indicated “the indisputable message” that “the court stands by its original sentence, even after Booker.” 7 Because McConnell has failed to show that the error affected his substantial rights, he cannot demonstrate that the district court committed plain error. 8

The judgment of the district court is 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.

1

. 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

2

. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,-U.S.-, 126 S. Ct. 43, 163 L.Ed.2d 76 (2005).

3

. Id.

4

5

. See Mares, 402 F.3d at 520-21.

6

. Mares, 402 F.3d at 521.

7