`FOR THE FIFTH CIRCUIT
`
`No. 04-40145
`Summary Calendar
`
`
`United States Court of Appeals
`Fifth Circuit
`F I L E D
`November 14, 2005
`
`Charles R. Fulbruge III
`Clerk
`
`UNITED STATES OF AMERICA,
`
`versus
`JOHN JASON SOLLEDER,
`
`Plaintiff-Appellee,
`
`Defendant-Appellant.
`--------------------
`Appeal from the United States District Court
`for the Eastern District of Texas
`USDC No. 1:03-CR-121-1
`--------------------
`ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
`Before DAVIS, SMITH and DENNIS, Circuit Judges.
`PER CURIAM:*
`This court affirmed the sentence of John Jason Solleder.
`United States v. Solleder, 111 Fed. Appx. 738 (5th Cir. 2004)
`(unpublished). The Supreme Court vacated and remanded for
`further consideration in light of United States v. Booker, 125
`S. Ct. 738 (2005). We requested and have received supplemental
`briefs addressing Booker’s impact.
`
`* 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`this opinion should not be published and is not precedent except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. 04-40145
`-2-
`Solleder asserts that the district court erred by sentencing
`him based on facts to which he did not admit and that were not
`found by a jury beyond a reasonable doubt and by sentencing him
`pursuant to mandatory guidelines. He contends that the mandatory
`application of the guidelines is a structural error and that
`prejudice should be presumed. He also asserts that he can meet
`the plain error standard because it is reasonably probable that
`he would have received a different sentence under advisory
`guidelines given that he cooperated by admitting his conduct and
`that he was sentenced at the lowest level under the guidelines.
`Because Solleder did not preserve his arguments before the
`district court, plain error review applies. See United States v.
`Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, 2005 U.S.
`LEXIS 6132 (U.S. Oct. 3, 2005). This court may correct forfeited
`errors only when the appellant shows the following factors:
`(1) there is an error, (2) that is clear or obvious, and (3) that
`affects his substantial rights. United States v. Calverley,
`37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United
`States v. Olano, 507 U.S. 725, 731-37 (1993)).
`The error identified in Booker is not the use of extra
`verdict enhancements, but rather the use of such enhancements
`under a mandatory guidelines system. See Mares, 402 F.3d at 521.
`To establish that such an error affected an appellant’s
`substantial rights, “the appellant must ordinarily point to
`statements in the record by the sentencing judge demonstrating a
`
`
`
`No. 04-40145
`-3-
`likelihood that the judge sentencing under an advisory scheme
`rather than a mandatory one would have reached a significantly
`different result.” See United States v. Pennell, 409 F.3d 240,
`245 (5th Cir. 2005); Mares, 402 F.3d at 521.
`Solleder has not made the requisite showing. This court has
`rejected the argument that mandatory application of the
`sentencing guidelines constitutes structural error or is
`presumptively prejudicial. See United States v. Malveaux, 411
`F.3d 558, 561 n.9 (5th Cir. 2005), cert. denied, 2005 U.S. LEXIS
`6485 (U.S. Oct. 3, 2005). Additionally, the fact that Solleder
`was sentenced at the lowest end of the guidelines does not
`indicate that his sentence would likely have been different under
`advisory guidelines. See United States v. Bringier, 405 F.3d
`310, 317-18 & n.4. (5th Cir. 2005), cert. denied, 2005 U.S. LEXIS
`6686 (U.S. Oct. 3, 2005). Finally, there is no indication that
`the district court was inclined to decrease Solleder’s sentence
`further based on his acceptance of responsibility.
`Because Solleder has not established plain error under
`Booker, we REINSTATE OUR JUDGMENT affirming his sentence.
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