Filed: Jun. 13, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 10, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-30298 UNITED STATES OF AMERICA Plaintiff - Appellee v. QUINTON WESLEY DEASON Defendant - Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 03-CR-30018-ALL ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges. PER CURI
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 10, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 04-30298 UNITED STATES OF AMERICA Plaintiff - Appellee v. QUINTON WESLEY DEASON Defendant - Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 03-CR-30018-ALL ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges. PER CURIA..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 10, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30298
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
QUINTON WESLEY DEASON
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 03-CR-30018-ALL
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Defendant-
Appellant Deason’s sentence. See United States v. Deason, No.
04-30298, 124 Fed. Appx. 222 (5th Cir. Sep. 27, 2004) (per
curiam) (unpublished). Following our judgment, Deason filed a
petition for certiorari, in which he challenged the
*
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that this opinion should not be published and is not precedent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.
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constitutionality of the Sentencing Guidelines as applied to
him.1 The Supreme Court granted Deason’s petition for
certiorari, vacated our judgment, and remanded the case to this
court for further consideration in light of United States v.
Booker,
125 S. Ct. 738 (2005). We now reconsider the matter in
light of Booker and decide to REINSTATE our previous judgment
affirming Deason’s sentence.
In his petition for certiorari, Deason challenged only the
district court’s alleged Sixth Amendment error, arguing that the
district court erred by enhancing his sentence under a mandatory
guidelines system based on facts not admitted by him or found by
a jury beyond a reasonable doubt.2 Because Deason did not object
in the district court to the use of extra-verdict enhancements to
compute his sentence in a mandatory guideline system, this court
reviews the district court’s imposition of the enhancements for
1
Deason did not challenge in his petition for certiorari
our prior findings that: (1) the district court properly
calculated his base offense level under § 2K2.1 of the Sentencing
Guidelines; and (2) Deason’s base offense level did not overstate
the seriousness of his crime. See Deason, 122 Fed. Appx. at 222.
Accordingly, we will consider only Deason’s Booker-related Sixth
Amendment claim here.
2
Specifically, Deason alleged in his petition for
certiorari that Sixth Amendment error was committed when the
district court, rather than the jury, found that: (1) Deason’s
possession of a stolen rifle involved a firearm described in 26
U.S.C. § 5845(a), leading to a base offense level of eighteen
rather than twelve; and (2) Deason had wilfully obstructed
justice, leading to an additional two-level enhancement.
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plain error.3 See United States v. Olano,
507 U.S. 725, 732-37
(1993); United States v. Mares,
402 F.3d 511, 520 (5th Cir.
2005); United States v. Knowles,
29 F.3d 947, 951 (5th Cir.
1994). This court finds plain error when: (1) there was an
error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights.
Olano, 507 U.S. at
732-37. When these three conditions are all met, this court may
exercise its discretion to correct the error only if the error
“seriously affects the fairness, integrity, or public reputation
of judicial proceedings.”
Mares, 402 F.3d at 520 (quoting United
States v. Cotton,
535 U.S. 625, 631 (2002)).
The first prong of the plain error test is satisfied in this
case. Under the mandatory guideline system in place at the time
of sentencing, Deason’s sentence was enhanced based on findings
made by the judge that went beyond the facts admitted by the
defendant or found by the jury. Deason has therefore established
Booker error. Because of Booker, this error is also plain,
satisfying the second prong of the test. United States v.
Bringier,
405 F.3d 310, 317 (5th Cir. 2005);
Mares, 402 F.3d at
521 (citing
Olano, 507 U.S. at 734, and Johnson v. United States,
520 U.S. 461, 468 (1997)).
The third prong of the plain error test, however, is not
3
While Deason did not allege in the district court that
Sixth Amendment error was committed, he did raise his challenge
to the constitutionality of the Sentencing Guidelines on appeal
in this court. See Deason, 124 Fed. Appx. at 222.
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satisfied in this case. Deason has failed to show that the error
affected his substantial rights. The standard for determining
whether an error affects substantial rights requires that the
error affected the outcome of the district court’s proceedings.
Bringier, 405 F.3d at 317;
Mares, 402 F.3d at 521 (citing
Olano,
507 U.S. at 734). To meet this standard, Deason bears the burden
of demonstrating a probability sufficient to undermine confidence
in the outcome.
Mares, 402 F.3d at 521 (citing United States v.
Dominguez Benitez,
124 S. Ct. 2333, 2340 (2004)). Because the
error here was the district court’s use of extra verdict
enhancements to reach a sentence under Guidelines that the
district court believed to be mandatory, the question is whether
Deason has demonstrated that the sentencing court would have
reached a different result had it sentenced Deason under an
advisory scheme rather than a mandatory one.
Bringier, 405 F.3d
at 317;
Mares, 402 F.3d at 521-22.
Based on the record before us, we do not know what the trial
judge would have done had the Guidelines been advisory. Deason
has pointed to nothing in the record indicating that the district
court would have reached a different conclusion under an advisory
scheme. In support of his claim that the district court would
have imposed a different sentence, Deason notes that counsel for
the government said that he had “no burning desire to see Mr.
Deason go to jail for any time. But that’s not the issue before
this Court. The issue before this Court is what does the law
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require of Mr. Deason’s conduct.” Deason also points to two
statements made by the district court at sentencing. First, the
district court stated that “[c]ontrary to public perception,
judges in federal courts do not exercise unfettered discretion in
passing sentences, and must consider the federal sentencing
guidelines and the guidelines sentencing ranges.” Second, the
district court stated:
I’d like to echo one thing that you said, Ms. Hudsmith;
and, Mr. Deason, this reflects well on you and your
family and your community, that although you have made a
very--obviously a serious mistake that a lot of people
still stand behind you. And they’re prepared to support
you, not only when you--you know, when you’ve done
something good, but also when you’ve made a mistake. And
that--as I said, I think that reflects favorably upon
them and on you also. And I hope that’s going to be a
blessing to you as you pay your debt to society.
None of these statements demonstrate that the district court
would have imposed a different sentence on Deason had it
sentenced him pursuant to an advisory, rather than mandatory,
sentencing regime. The prosecutor’s statement sheds no light on
how the district court would have sentenced Deason under an
advisory regime, and the district court’s statements, which
merely acknowledge the existence of the Guidelines and express
sympathy toward Deason, do not suggest that the district court
would have sentenced Deason differently had the Guidelines been
advisory. Accordingly, Deason has failed to carry his burden of
demonstrating that his sentence likely would have been different
had the district court sentenced him under the post-Booker
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advisory regime rather than the pre-Booker mandatory regime. We
therefore find no plain error. See
Bringier, 405 F.3d at 317;
Mares, 402 F.3d at 521-22.
For the foregoing reasons, we REINSTATE our judgment
affirming Deason’s sentence.
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