United States v. Caton

PER CURIAM: * Gregory James Catón appeals the sentence imposed following his guilty plea conviction of mail fraud and introduction of unapproved new drugs into interstate commerce, in violation of 18 U.S.C. § 341 and 21 U.S.C. §§ 331(d), 355(a) and 333(a)(2). Caton argues that his sentence violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because the district court sentenced him based on facts neither admitted by Catón nor found by a jury and the district court sentenced him under the pr e-Booker, mandatory Guidelines. The lack of an objection in the district court on these issues requires this court to review his arguments for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005); United States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 464, 163 L.Ed.2d 352 (2005). In Caton’s case there was clear or obvious Booker error because the district court imposed a sentence based on judge-found facts that were neither admitted by Catón nor found by a jury. See Mares, 402 F.3d at 520. However, Catón cannot establish that this error affected his substantial rights. To meet this prong of the plain error test, “the error must have affected the outcome of the district court proceedings.” Id. at 521. To demonstrate that the error affected his substantial rights, Catón argues that the district court attempted to be lenient in determining his sentence and states that the district court imposed the minimum Guidelines sentence. However, imposition of a sentence at the low end of the Guidelines range is not sufficient to demonstrate that a lower sentence would have been imposed if the Guidelines had been advisory rather than mandatory. United States v. Bringier, 405 F.3d 310, 318 n. 4 (5th Cir.), cert. denied,-U.S.-, 126 S.Ct. 264, 163 L.Ed.2d 238 (2005). Catón also relies upon various comments made by the district court. The district court’s comments, when read in context, do not indicate displeasure with the pr e-Booker Guidelines scheme. Moreover, the district court stated that the Guidelines calculations it was using were set forth in the presentence report, which the district court found reasonably addressed the criminal conduct in question. There is no evidence in the record *215 which suggests that the district court felt constrained by the Guidelines and that if the judge had sentenced Catón under an advisory sentencing regime rather than a mandatory one, Catón would have received a lesser sentence. Catón has therefore failed to establish that the judicial findings of fact upon which his sentence is based is plain error under Booker. See United States v. Infante, 404 F.3d 376, 395 (5th Cir.2005). Caton has likewise failed to establish that the district court committed plain eiTor when it sentenced him under the pr e-Booker, mandatory Guidelines. Martinez-Lugo, 411 F.3d at 600-01. Finally, this court has rejected the argument made by Catón that the error in applying the Guidelines as mandatory is a structural exror that should be presumed prejudicial. Id. at 601 (neither Booker error nor Fan-fan error is structural). For the foregoing reasons the judgment of the district court is AFFIRMED. Footnotes [*] 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.