United States v. Lopez-Cruz , 143 F. App'x 632 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 30, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40538
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SAMIR LOPEZ-CRUZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-896-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
On December 17, 2004, in an unpublished opinion, this court
affirmed the sentence of Samir Lopez-Cruz. United States v.
Lopez-Cruz, 115 Fed. Appx. 742 (5th Cir. 2004). The Supreme
Court has vacated and remanded for further consideration in light
of United States v. Booker, 125 S. Ct. 738 (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this opinion should not be published and is not precedent except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. 04-40538
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Lopez contends that the district court illegally sentenced
him pursuant to a mandatory Sentencing Guidelines regime, in
violation of Booker. He concedes that such argument is raised
for the first time and is reviewable for plain error only. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
Sentencing a defendant pursuant to a mandatory guideline scheme,
standing alone, constitutes “Fanfan” error, and such an error is
“plain.” See Booker, 125 S. Ct. at 750, 768-69 (addressing
preserved challenge in companion case); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005),
petition for cert. filed (Jul. 25, 2005) (No. 05-5556).
To satisfy the third prong of the plain-error test, Lopez
must show that his “substantial rights” were affected. See
Valenzuela-Quevedo, 407 F.3d at 732. “The pertinent question is
whether [the appellant] demonstrated that the sentencing judge
-–sentencing under an advisory scheme rather than a mandatory
one-–would have reached a significantly different result.”
Mares, 402 F.3d at 521. This question requires us to assess
whether “there is [an] indication in the record from the
sentencing judge’s remarks or otherwise that gives us any clue as
to whether [ ]he would have reached a different conclusion” if
sentencing under an advisory scheme. Id. at 522. There is no
indication in the record of Lopez’s sentencing that the district
court would have sentenced him differently under an advisory
No. 04-40538
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regime. See United States v. Bringier, 405 F.3d 310, 317-18 n.4
(5th Cir. 2005), petition for cert. filed (Jul. 26, 2005)
(No. 05-5535) (imposition of sentence at bottom of guideline
range, standing alone, is no indication that judge would have
reached different conclusion under an advisory regime).
To the extent that Lopez argues that the Booker error is a
“structural” one that is not susceptible to a plain-error
analysis, or that he alternatively contends that plain-error
prejudice should be presumed, this court has rejected such
arguments. United States v. Martinez-Lugo, 411 F.3d 597, 601
(5th Cir. 2005).
Accordingly, we conclude that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in
this case. We therefore reinstate our judgment affirming the
defendant’s conviction and sentence.