UNITED STATES of America, Plaintiff-Appellee, v. Clayton HARRIS, Defendant-Appellant, 133 F. App'x 99

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: This court affirmed the sentence of defendant Clayton Harris, whose real name is Clyde Bates. United, States v. Harris, 96 Fed.Appx. 182 (5th Cir.2004) (per curiam). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Harris v. United States, — U.S. -, 125 S.Ct. 1040, 160 L.Ed.2d 1023 (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

Harris claims there is error under Booker because his sentencing level was increased by two under the then-mandatory federal sentencing guidelines because the district court, rather than a jury, made the factual finding that Harris had engaged in obstruction of justice. The government seems to concede, albeit reluctantly, that this was plain error, and we agree. The government correctly contends the plain error standard of review should apply because Harris did not preserve a Sixth Amendment error. Harris relies on the fact that he did object to the evidence on which the court found obstruction.

He did not, however, object that those facts were being decided by the court rather than the jury. This was inadequate to preserve the error that Harris now asserts based on Booker. Because no Sixth Amendment objection was raised in the district court, we review for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). “An appellate court may not correct an error the defendant failed to raise in the district court unless there is ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quoting United States v.

Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). To show that his substantial rights are affected, Harris must “point[ ] to ... evidence in the record suggesting that the district court would have imposed a lesser sentence under an advisory guidelines system.” United States v. Taylor, 409 F.3d 675, 677 (5th Cir.2005) (per curiam) (citations omitted). Harris points to the fact that the court sentenced him to the lowest sentence under the applicable guideline range.

He refers, however, to no evidence indicating the court’s displeasure with the guidelines themselves or with the reasonableness of the sentencing range designated by the guidelines. Thus, he does not demonstrate that the court would have imposed a different sentence if it had deemed the guidelines to be only advisory. The judgment of sentence is AFFIRMED. 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.