United States v. Stine

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 24, 2005

Charles R. Fulbruge III Clerk No. 04-40561 consolidated with No. 04-40582 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIKEAL GLEN STINE,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. 6:03-CR-44-2 --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

In an opinion of January 12, 2005, this court affirmed the

conviction and sentence of Mikeal Glen Stine for aiding and

abetting bank robbery and conspiracy to commit bank robbery. We

withdrew that opinion for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005), which held that

the federal sentencing guidelines are now advisory rather than

mandatory.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40561 c/w No. 04-40582 -2-

Having now considered the supplemental briefs filed by the

parties, we reinstate the entirety of the January 12, 2005

opinion and add the following:

Stine contends that his sentence is invalid in light of

Booker because the sentencing judge applied the sentencing

guidelines as if they were mandatory. Because Stine did not

raise this issue in the district court, we review it only for

plain error. United States v. Valenzuela-Quevedo, ___F.3d___,

No. 03-41754, 2005 WL 941353, *3 (5th Cir. 2005). To prevail

under a plain error analysis, Stine must show, among other

things, that the error prejudiced him by adversely affecting his

substantial rights. Id. at *3-*4.

Stine fails to identify anything in the record to suggest

that his sentence would have been any less had the court applied

the sentencing guidelines as advisory rather than mandatory. See

id. at *4. He thus fails to establish prejudice to his

substantial rights. See id.

The judgment of the district court is AFFIRMED.