United States v. Payne , 168 F. App'x 642 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-30418
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADDISON WARREN PAYNE, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-309-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Appellant Addison Warren Payne, III, challenges his sentence
for bank robbery under 18 U.S.C. §§ 2113(a) and (d) and for
brandishing a firearm under 18 U.S.C. § 924(c)(1). Citing United
States v. Booker, 543 U.S. 220 (2005), Payne asserts that the
district court erred by increasing his sentence based upon facts
that were neither proven to a jury nor admitted by Payne.
Because he did not raise a Sixth Amendment objection below,
we review this issue for plain error. See 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this opinion should not be published and is not precedent except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. 05-30418
-2-
Mares, 402 F.3d 511, 521 (5th Cir.), cert. denied, 126 S. Ct. 43
(2005). Payne must demonstrate (1) an error, (2) that is plain,
and (3) that affects his substantial rights. Id. If these
conditions are satisfied, we may exercise our discretion to
correct the error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.
To the extent that Payne argues that any error should be
considered presumptively prejudicial, this argument is foreclosed
by circuit precedent. United States v. Malveaux, 411 F.3d 558,
561 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).
Payne correctly asserts that the district court increased
his sentence for both the bank robbery and firearm convictions
based upon factual findings made by the judge. Because the judge
sentenced Payne under the belief that the Sentencing Guidelines
were mandatory, we find that the court committed error that was
plain. See Mares, 402 F.3d at 520-21. However, Payne cannot
demonstrate that the error affected his substantial rights under
this court’s precedent. See id.
Accordingly, the judgment of the district court is AFFIRMED.