United States v. Sprague ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
Charles R. Fulbruge III
Clerk
No. 03-41733
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON STEVEN SPRAGUE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-62-2
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Jason Steven Sprague appeals appeal his sentence of 405
months of imprisonment following his guilty plea to one count of
racketeering activity under the Racketeer Influenced Corrupt
Organizations Act (RICO), one count of interstate travel in aid
of racketeering (ITAR), and one count of conspiring to transport
illegal aliens. The district court determined Sprague’s base
offense level by using the offense level for second degree
murder. The district court also increased Sprague’s offense
*
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this opinion should not be published and is not precedent except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. 03-41733
-2-
level for the special circumstances of vulnerable victims, use of
special skill, and restraint of victims. United States v. Dock,
293 F. Supp. 2d 704 (E.D. Tex. 2003).
Sprague attacks the district court’s determination of his
base offense level and each enhancement. Sprague has not shown
that the district court erred in determining his base offense
level. United States v. Posada-Rios, 158 F.3d 832, 855-56, 880-
81 (5th Cir. 1998). Sprague has not shown that the district
court clearly erred in finding that Sprague’s victims were
vulnerable. Sprague has not shown that the district court was
clearly erroneous in finding that he used a special skill to
commit the offense. United States v. Deville, 278 F.3d 500, 508
(5th Cir. 2002). Sprague has not shown that the district court
clearly erred in finding that Sprague restrained his victims.
United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Sprague argues that his sentence was unconstitutional under
Blakely v. Washington, 124 S. Ct. 2531 (2004). While Sprague’s
appeal was pending, United States v. Booker, 125 S. Ct. 738, 755-
56 (2005), held Blakely applicable to the federal sentencing
guidelines. Sprague filed a supplemental letter brief arguing
the applicability of Booker to his sentence. Because the
Blakely/Booker issue was not raised in the district court, review
is for plain error only. United States v. Mares, 402 F.3d 511,
520-21 (5th Cir. 2005), petition for cert. filed, No. 04-9517
(U.S. Mar. 31, 2005).
No. 03-41733
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To show that the error affected substantial rights, Sprague
must show that the error “affected the outcome of the district
court proceedings,” i.e., “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
520-21. (internal quotation marks and citation omitted). In this
case, the district court stated the reasons for imposing the
enhancements in a published opinion. See Dock, 293 F. Supp. 2d
at 706-15. Sprague does not suggest and the record gives no
indication that the court would have reached a significantly
different result had it been aware that the guidelines were
discretionary. Mares, 402 F.3d at 521. Sprague has not carried
his burden of proving that his substantial rights were affected
and, therefore, cannot show plain error.
AFFIRMED.