United States v. Fehr , 153 F. App'x 313 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 05-50121
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHAN FEHR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1334-1
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Johan Fehr appeals the sentences imposed following his
guilty-plea convictions for conspiracy to possess with intent to
distribute 100 kilograms or more of marijuana and possession with
intent to distribute 100 kilograms or more of marijuana. For the
first time on appeal, Fehr argues that the district court
committed reversible error under United States v. Booker,
125 S. Ct. 738 (2005), by sentencing him pursuant to a mandatory
application of the sentencing guidelines. We review for plain
*
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this opinion should not be published and is not precedent except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. 05-50121
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error. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
732 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).
Fehr contends that the district court would have sentenced
him to a lesser sentence under an advisory guidelines scheme
because it sentenced him to the minimum guidelines sentence,
because it inquired whether he was entitled to a three-level
reduction for acceptance of responsibility, and because it waived
the fine. Fehr further asserts that he would have received a
lesser sentence because the district court noted that it had
received nice letters from Fehr’s family and that Fehr should be
reassured that the people who knew him best thought so highly of
him.
As Fehr acknowledges, being sentenced to the minimum
guidelines sentence, standing alone, is not sufficient to show
plain error. See United States v. Bringier, 405 F.3d 310, 317
(5th Cir.), cert. denied, 126 S. Ct. 264 (2005). The district
court’s comments regarding Fehr’s family and the letters they
sent are insufficient to show plain error. See United States v.
Creech, 408 F.3d 264, 272 (5th Cir. 2005) (mere sympathy to
defendant or his family is insufficient). Fehr “points to no
remarks made by the sentencing judge that raise a reasonable
probability that the judge would have imposed a different
sentence under an advisory scheme.” United States v. Hernandez-
Gonzalez, 405 F.3d 260, 262 (5th Cir.), cert. denied, 126 S. Ct.
No. 05-50121
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202 (2005). Accordingly, Fehr has not shown that the district
court committed plain error. See id.
AFFIRMED.