United States v. Cockerham ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-30642
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHAWN M. COCKERHAM,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:02-CR-60041-RFD
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Shawn M. Cockerham appeals his guilty-plea conviction and
sentence for being a felon in possession of ammunition and
firearms. Cockerham contends that his sentence is invalid in
light of United States v. Booker, 125 S. Ct. 738 (2005), because
the sentencing judge applied the sentencing guidelines as if they
were mandatory. We review for plain error. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition
for cert. filed (July 25, 2005) (No. 05-5556); United States v.
*
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this opinion should not be published and is not precedent except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. 04-30642
-2-
Malveaux, 411 F.3d 558, 560 (5th Cir. 2005), petition for cert.
filed (July 11, 2005) (No. 05-5297). To prevail under a plain
error analysis, Cockerham must show: “(1) error, (2) that is
plain, and (3) that affects his substantial rights.” United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal
quotations and citation omitted), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517). If these three conditions are
met, this court has the discretion to correct the error, “but
only if (4) the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” Valenzuela-
Quevedo, 407 F.3d at 733 (citation and internal quotations marks
omitted).
To demonstrate that the plain error affected his substantial
rights, Cockerham has the burden of showing that the error
“affected the outcome of the district court proceedings.” Id.
(internal quotations and citation omitted). He 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.
There is nothing in the record to suggest that Cockerham’s
sentence would have been any less had the court applied the
sentencing guidelines as advisory rather than mandatory. See
Valenzuela-Quevedo, 407 F.3d at 733-34. Cockerham thus fails to
establish prejudice to his substantial rights. The judgment of
the district court is AFFIRMED.