United States v. Risby , 170 F. App'x 354 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 02-10704
consolidated with
No. 02-10975 and
No. 02-11364
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM MORRIS RISBY,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-442-1-R
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and SMITH and STEWART, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and
sentence of William Morris Risby. United States v. Risby, No. 02-
11364 (5th Cir. Nov. 12, 2004). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). See Risby v. United States, 125 S.
*
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should not be published and is not precedent except under the limited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.
Ct. 1872 (2005). We requested and received supplemental letter
briefs addressing the impact of Booker.
At the district court and in his original appeal to this
court, Risby objected to the district court’s enhancements, arguing
that the enhancements were not supported by sufficient evidence.
To preserve Booker error, a defendant need not explicitly cite
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),
Blakely v. Washington, 542 U.S.296, 124 S. Ct. 2531 (2004), or the
Sixth Amendment. See United States v. Akpan, 407 F.3d 360, 376
(5th Cir. 2005). However, he must “adequately apprise[] the court
that he was raising a constitutional error.” United States v.
Olis, slip. op. at 8 (5th Cir. Oct. 31, 2005). The argument must
be couched in terms that the facts used to enhance the sentence
were not proven to a jury beyond a reasonable doubt. See Akpan,
407 F.3d at 376, 377 (finding that one defendant, who had objected
on reasonable doubt grounds, had preserved Booker error, but
finding that the other, who did not “couch his arguments ... in the
same terms,” did not preserve Booker error); United States v.
Bringier, 405 F.3d 310, 315 (concluding that the defendant had not
preserved his Booker objection even though he objected at trial
that the evidence did not support an enhancement because the court
did not “consider his arguments below in the ‘essence’ of Blakely
and the Sixth Amendment”).
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Here, Risby’s objections did not apprise the district
court that he was raising a constitutional claim of error. He
objected that the enhancements were not supported by even a
preponderance of the evidence. This claim goes to the factual basis
of the enhancement, not the constitutional validity of it. Because
Risby did not preserve a Booker-like objection in the district
court, we review for plain error. See United States v. Garcia-
Rodriguez, 415 F.3d 452, 456 (5th Cir. 2005) (finding that raising
the Booker issue in a supplemental, 28(j) letter is sufficient to
preserve plain error review).
Under the Booker holding that changes the Guidelines from
mandatory to advisory, there is error in this case because the
district court viewed and acted under the Sentencing Guidelines as
mandatory and not discretionary. Risby, however, identifies no
evidence in the record suggesting that the district court “would
have reached a significantly different result” under an advisory
scheme rather than a mandatory one. United States v. Mares,
402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S. Ct. 43
(2005). Indeed, Risby was sentenced at the top of the applicable
Guideline range. Accordingly, Risby cannot make the necessary
showing of plain error that is required by our precedent. See
United States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005)
(comments that sentence was “harsh” are insufficient to demonstrate
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that defendant’s substantial rights were affected), cert. denied,
126 S. Ct. 264 (2005); United States v. Creech, 408 F.3d 264, 272
(5th Cir. 2005) (“[M]ere sympathy ... is not indicative of a judge’s
desire to sentence differently under a non-mandatory Guidelines
regime.”); United States v. Hernandez-Gonzalez, 405 F.3d 260, 262
(5th Cir. 2005) (sentence at the bottom of the Guideline range and
potential mitigating factors do not raise a reasonable probability
of a different sentence), cert. denied, 126 S. Ct. 202 (2005).
Because nothing in the Supreme Court's Booker decision
requires us to change our prior affirmance in this case, we adhere
to our prior determination and therefore reinstate our judgment
AFFIRMING Risby’s conviction and sentence.
AFFIRMED.
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