United States v. Benjamin

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. 05-40085
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROMMELL DUANE BENJAMIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CR-2-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Rommell Duane Benjamin appeals the sentence imposed
following his guilty plea conviction for possession of five grams
or more of cocaine base. He argues that he was sentenced under a
mandatory guideline sentencing system in violation of United
States v. Booker, 125 S. Ct. 738 (2005). Benjamin contends that
the district court may have imposed a lesser sentence under a
discretionary system.
Sentencing a defendant pursuant to a mandatory guideline
scheme, without an accompanying Sixth Amendment violation,
*
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this opinion should not be published and is not precedent except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. 05-40085
-2-
constitutes “Fanfan” error. United States v. Villegas, 404 F.3d
355, 364 (5th Cir. 2005)(discussing the distinction between the
two types of error addressed in Booker). Where Fanfan error is
raised for the first time on appeal, review is for plain error.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005).
Benjamin has met the first two prongs of the plain error
test because “Fanfan” error is “error” that is “plain.” See id.
However, to meet the third prong of the analysis and show that
the error affected his substantial rights, Benjamin bears the
burden of “establish[ing] that the error affected the outcome of
the district court proceedings.” Id. (internal quotation marks
and citation omitted). Benjamin must show “that the sentencing
judge–-sentencing under an advisory scheme rather than a
mandatory one--would have reached a significantly different
result.” United States v. Mares, 402 F.3d 511, 521 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005).
Benjamin cannot show that the error affected his substantial
rights. There is nothing in the record indicating that the
district court would have imposed a different sentence if it had
known that it was not bound by the sentencing guidelines. See
United States v. Taylor, 409 F.3d 675, 677 (5th Cir. 2005).
Benjamin cannot demonstrate plain error. The sentence is
AFFIRMED.