United States v. Smith ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-30103
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMIE SMITH, also known as Papoose, also known as Pap,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:01-CR-50070-2
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Jamie Smith. United
States v. Smith, 111 Fed. Appx. 280 (5th Cir. 2004) (per curiam)
(copy at R. 1, 295-96). The Supreme Court vacated and remanded
for further consideration in light of United States v. Booker,
125 S. Ct. 738 (2005). Smith v. United States, 125 S. Ct. 1063
(2005). This court requested and received supplemental letter
briefs addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 04-30103
-2-
Smith contends there is Sixth Amendment error under Booker
because the district court, rather than a jury, made findings
regarding his role in the offense and the quantity of drugs
attributable to him. To the extent his sentence could have been
based solely on his career-offender status, he contends that the
district court erred by applying the guidelines as mandatory.
Smith concedes, and the record confirms, that he did not
preserve his Booker issues by objection in the district court.
Accordingly, his contentions are reviewed only for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th
Cir. 2005); United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-
9517).
To establish plain error, Smith must show (1) an error, (2)
that is clear or obvious, and (3) that affects his substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993);
Mares, 402 F.3d at 520. “If all three conditions are met an
appellate court may then exercise its discretion to notice a
forfeited error but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” Mares, 402 F.3d at 520 (internal quotation marks
omitted). To satisfy the third part of the test Smith must
demonstrate that the sentence “would have likely been different
had the judge been sentencing under the Booker advisory regime
rather than the pre-Booker mandatory regime.” See id. at 521-22.
 No. 04-30103
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If Smith’s sentence were deemed to be based on his career-
offender status alone, the principles of Booker would not apply.
See United States v. Guevara, __F.3d__. No. 03-11299, 2005 WL
1009772, *6 (5th Cir. May 2, 2005). Nonetheless, to the extent
the court applied the guidelines as mandatory or based Smith’s
sentence on its own determination of the relevant drug quantity
and Smith’s role in the offense, the court committed errors that
were clear and obvious. See Valenzuela-Quevedo, 407 F.3d at 733;
Mares, 402 F.3d at 521.
With respect to the third part of the test, Smith points to
the sentencing court’s explicit intention to impose the minimum
sentence as proof that the court would have imposed a lesser
sentence under advisory guidelines. Imposition of the minimum
guidelines sentence does not establish that the court would have
imposed a lesser sentence. United States v. Bringier, 405 F.3d
310, 317 (5th Cir. 2005). Moreover, the sentencing judge stated
that a 30-year sentence reflects the seriousness of the offense
and Smith’s criminal history. The court’s statement suggests
that it would not have imposed a sentence of less than 360 months
under advisory guidelines. Smith fails to demonstrate plain
error.
The judgment is AFFIRMED in all respects except for the
imposition of a $100 special assessment on Count 24. As in our
prior opinion, that part of the judgment is MODIFIED to reflect a
conviction on Count 1 only and a special assessment of only $100.
No. 04-30103
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Any money paid by Smith toward the erroneous special assessment
should be refunded.
AFFIRMED IN PART; MODIFIED IN PART.