United States v. Thibodaux

145 F. App'x 976

Opinion

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

Charles R. Fulbruge III Clerk No. 04-30407 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES W. THIBODAUX, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:03-CR-10013-ALL --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

This court affirmed the sentence of James W. Thibodaux, Jr.

United States v. Thibodaux, No. 04-30407 (5th Cir. Dec. 17, 2005)

(unpublished). The Supreme Court vacated and remanded for

further consideration in light of United States v. Booker, 125

S. Ct. 738 (2005). Thibodaux v. United States, 125 S. Ct. 1950

(2005). We requested and received supplemental letter briefs

addressing the impact of Booker.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-30407 -2-

Thibodaux argues that the application of sentence

enhancements based upon facts neither admitted by him nor proven

to a jury under a mandatory application of the guidelines

violated the Sixth Amendment under Booker. Thibodaux contends

that his objections to the amounts of loss and restitution in the

district court preserved this issue for review. In his

objections, however, Thibodaux argued only that the amounts of

loss and restitution were overstated or unsupported.

Accordingly, Thibodaux did not preserve this issue, and we review

for plain error only. See United States v. Mares, 402 F.3d 511,

516 & n.2, 520 (5th Cir. 2005), petition for cert. filed (Mar.

31, 2005) (No. 04-9517).

There is no dispute that the first two prongs of the plain

error standard are satisfied; there was Sixth Amendment error,

and the error was plain. See id. at 520-21. In order to meet

the third prong of the plain error standard, Thibodaux must

demonstrate “that the sentencing judge--sentencing under an

advisory scheme rather than a mandatory one--would have reached a

significantly different result.” Id. at 521. The court made no

particular comment about the 78-month sentence it imposed. As in

Mares, there is no indication in the record, and Thibodaux points

to none, as to what the district court would have done had it

known that the guidelines were advisory. See id. at 522. Given

these circumstances, Thibodaux has not met the third prong of the

plain error standard. See id. Because nothing in the Supreme No. 04-30407 -3-

Court’s Booker decision requires us to change our prior

affirmance in this case, we reinstate our judgment affirming

Thibodaux’s sentence.

AFFIRMED.