United States v. McConnell , 208 F. App'x 338 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 7, 2006
Charles R. Fulbruge III
Clerk
No. 06-30487
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN MICHAEL MCCONNELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:04-CR-50083-ALL
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
John Michael McConnell challenges his sentence for
misapplication of funds by a bank employee under 18 U.S.C. § 656.
Citing our precedent under United States v. Booker,1 McConnell
asserts that the district court erred by increasing his sentence
based upon facts that were neither proven to a jury nor admitted by
him. Because he did not raise the objection below, we review this
issue for plain error.2 McConnell must demonstrate (1) an error,
*
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opinion should not be published and is not precedent except under the limited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.
1
543 U.S. 220 (2005).
2
See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005).
No. 06-30487
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(2) that is plain, and (3) that affects his substantial rights.3
If these conditions are satisfied, we may exercise our discretion
to correct the error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”4
(internal quotation marks and citation omitted).
The district court increased McConnell’s sentence based upon
a factual finding and under the belief that the Sentencing
Guidelines were mandatory, so the error is plain.5 However,
McConnell has failed to show that “the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
reached a significantly different result.”6
McConnell’s best evidence is from the sentencing hearing,
where the district court remarked:
If I sentence you for less than the guidelines, under the
present system, [the AUSA] has to report me to the
Attorney General. And the Attorney General has to report
me to the chairman of the House Judiciary Committee and
Senate Judiciary Committee and say that Judge Stagg
departed downward without legal authority.
However, the very same Judge, in denying McConnell’s motion for
release pending appeal, rejected his Booker arguments, reasoning
that “there is no indication that McConnell’s sentence would have
been different under an advisory guidelines scheme as opposed to a
3
Id.4
Id.5
See Mares, 402 F.3d at 520-21.
6
Mares, 402 F.3d at 521.
No. 06-30487
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mandatory one.” We hold that this most recent statement by the
district court is dispositive of the substantial-rights question.
This holding follows Smith, where we held that such a statement,
made in the context of a district court’s denial of a § 2255 motion
to vacate, indicated “the indisputable message” that “the court
stands by its original sentence, even after Booker.”7 Because
McConnell has failed to show that the error affected his
substantial rights, he cannot demonstrate that the district court
committed plain error.8
The judgment of the district court is AFFIRMED.
7
United States v. Smith, 442 F.3d 868, 871 (5th Cir. 2006).
8
See Mares, 402 F.3d at 520-21.