Filed: Nov. 30, 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 FOR THE FIFTH CIRCUIT November 30, 2005 Charles R. Fulbruge III Clerk No. 03-20199 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BEVERLY SCOTT, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:00-CR-686-1 - ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. PER CU
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 30, 2005 Charles R. Fulbruge III Clerk No. 03-20199 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BEVERLY SCOTT, Defendant-Appellant. - Appeal from the United States District Court for the Southern District of Texas USDC No. 4:00-CR-686-1 - ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. PER CUR..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2005
Charles R. Fulbruge III
Clerk
No. 03-20199
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEVERLY SCOTT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CR-686-1
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Beverly Scott. United
States v. Scott, 112 Fed. Appx. 965 (5th Cir. Oct. 19,
2004)(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker,
125
S. Ct. 738 (2005). Scott v. United States,
125 S. Ct. 1712 (2005).
We requested and received supplemental letter briefs addressing the
impact of Booker.
*
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opinion should not be published and is not precedent except under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. 03-20199
-2-
Scott argues that the district court’s application of
sentencing guidelines adjustments based upon leadership role,
minimal planning, and amount of loss violated the Sixth Amendment.
Because Scott failed to raise this objection in the district court,
her argument is reviewed for plain error only. See United States v.
Mares,
402 F.3d 511, 520-21 (5th Cir. 2005), cert. denied, --- U.S.
----,
126 S. Ct. 43 (2005). To meet plain error, Scott must show
(1) error; (2) that is plain; and (3) that affects her substantial
rights.
Id. at 520.
In light of Booker, it is clear that the district court
committed error that is plain. However, Scott fails to show that
the error affected her substantial rights. She points to nothing
in the record, and indeed upon independent review there is nothing
in the record, indicating that the district court would have
imposed a lower sentence under an advisory guidelines regime. See
Mares, 402 F.3d at 522. Accordingly, Scott cannot meet her burden
under the plain error standard.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Scott’s conviction and sentence.