UNITED STATES of America, Plaintiff-Appellee, v. Joseph Lee JACKSON, Defendant-Appellant, 138 F. App'x 632

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: This court affirmed Joseph Jackson’s conviction. United States v. Jackson, 390 F.3d 393 (5th Cir.2004). 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). Jackson v. United States,—U.S.-, 125 S.Ct. 1683, 161 L.Ed.2d 473 (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

Jackson did not raise a Sixth Amendment issue in the district court but did so in a letter brief filed in this appeal long before our opinion issued. He raised the issue again in his petition for writ of certiorari. In his supplemental brief addressing Booker, he acknowledges that at his guilty plea hearing, he admitted to possessing 1,486 grams of cocaine, a figure that was used to calculate his sentence. The district court then departed upwardly from the range calculated in accordance with the then-mandatory sentencing guidelines.

By virtue of his failure to object in the district court, Jackson concedes that he is subject to plain-error review. 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)).

Because Jackson admitted to the quantity of drugs on which his sentence was based, there is no Sixth Amendment violation. His only remaining claim is that he nonetheless is entitled to be sentenced under an advisory, instead of mandatory, guideline regime. “Technically”, this is a “Fanfan error, not a Booker error.” United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.2005) (per curiam) (referring to Ducan Fanfan, the second defendant in the consolidated opinion in Booker). See United States v.

Villegas, 404 F.3d 355, 364 (5th Cir.2005) (per curiam) (discussing the difference between Booker and Fanfan error). The government concedes that although there is no Booker error, there is Fanfan error. The third prong of the plain-error test requires, under Mares, that “the defendant rather than the government bears the burden of persuasion with respect to prejudice.” Mares, 402 F.3d at 521 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

To show that his substantial rights are affected, Jackson would have to “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). In other words, “the pertinent question is whether [the defendant] demonstrated that the sentencing judge — sentencing under an advisory scheme rather than a mandatory one— would have reached a significantly different result.” Mares, 402 F.3d at 521.

To meet this standard, the proponent of the error must demonstrate a probability “sufficient to undermine confidence in the outcome.” United States v. Dominguez Benitez, 542 U.S. 74,-, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). In her supplemental brief, Jackson’s counsel candidly admits that “the record does not satisfy the Mares prejudice standard for plain error review.” She suggests that Mares is wrongly decided but acknowledges it as binding Fifth Circuit precedent.

She proceeds, however, to argue further that applying the sentencing guidelines as mandatory is structural error that requires no showing of prejudice “because it affected the entire framework within which sentencing proceeded [and] should be deemed to have affected Jackson’s substantial rights, in satisfaction of the third prong of Olano’s plain error test.” This contention has no merit, for we have determined that Booker error is not structural error. United States v.

Muhammad, 132 Fed.Appx. 8, 9 (5th Cir.2005) (per curiam) (unpublished). “[W]e reject [the] argument that Booker error is structural and insusceptible to harmless error analysis, and that Booker error should be presumed prejudicial, as both claims are in conflict with Mares.” United States v. Malveaux, 128 Fed.Appx. 362, 364 n. 9 (5th Cir.2005) (per curiam). Neither Booker error nor Fanfan error is structural. Martinez-Lugo, 411 F.3d at 601. The judgment of conviction is AFFIRMED for the reasons set forth in our initial opinion. For the reasons herein explained, the judgment of sentence is likewise 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. . In his supplemental brief, Jackson makes the related argument that “[e]ven if the error is not deemed structural, it should be considered as among the class of errors that are 'presumed prejudicial’ ” (citing, inter alia, United States v. Reyna, 358 F.3d 344, 351-52 (5th Cir.) (en banc), cert. denied, 541 U.S. 1065, 124 S.Ct. 2390, 158 L.Ed.2d 966 (2004)).

As the government points out, Reyna addressed an entirely different situation, and in any event, Jackson's argument is foreclosed by the statement in Booker that mandates review under "ordinary prudential doctrines” such as "the harmless error doctrine.” Booker, 125 S.Ct. at 769.