United States v. Cantu-Marichalar , 163 F. App'x 331 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 20, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20205
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
UBALDO CANTU-MARICHALAR,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-392-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, and JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
This court affirmed Ubaldo Cantu-Marichalar’s conviction and
sentence. United States v. Cantu-Marichalar, 111 Fed. Appx. 323(5th Cir. 2004). The Supreme Court vacated and remanded for
further consideration in the light of United States v. Booker, 125
S.Ct. 738 (2005). Cantu-Marichalar v. United States, 125 S.Ct.
1423 (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this opinion should not be published and is not precedent except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.
In his supplemental brief, Cantu-Marichalar argues that the
district court’s application of mandatory sentencing guidelines was
reversible plain error. Cantu-Marichalar acknowledges that he did
not raise this issue before the district court. Accordingly, we
review the claim only for plain error. United States v. Mares, 402
F.3d 511, 520 (5th Cir.), cert. denied, 126 S.Ct. 43 (2005). There
is no plain error because, as Cantu-Marichalar concedes, the
district court did not make any statements that could support an
inference that the district court would have imposed a lesser
sentence under advisory sentencing guidelines.
Cantu-Marichalar argues that the record supports a finding
that there is a reasonable probability that the district court
would have imposed a lower sentence under an advisory sentencing
scheme. In support of this contention, he points to the fact that
he received the minimum sentence under the guidelines range; and
that he filed a motion for downward departure based on cultural
assimilation because he had lived in the United States since he was
a young child and had significant family, cultural, and emotional
ties to the United States. He contends that, in a post-Booker
world, the district court might well have concluded that the
minimum sentence under the guidelines was greater than necessary to
meet the purposes of sentencing identified in 18 U.S.C. § 3553(a),
even if Cantu-Marichalar were unable to meet the standards for a
downward departure. Cantu-Marichalar has failed to carry his
burden of demonstrating that there is a reasonable probability that
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he would have received a lesser sentence under advisory guidelines.
See United States v. Bringier, 405 F.3d 310, 317-18 & n.4 (5th
Cir.) (sentencing judge’s acknowledgement that sentence was
“harsh”, and fact that sentencing judge imposed minimum sentence
under guideline range is not an “indication that the judge would
have reached a different conclusion under an advisory scheme”),
cert. denied, 126 S.Ct. 264 (2005); see also United States v.
Hernandez-Gonzalez, 405 F.3d 260, 262 (5th Cir.) (fact that
defendant received minimum sentence under Guidelines, and evidence
that defendant suffered from alcohol abuse problem that was
responsible for much of his criminal history and that he returned
illegally to the United States to earn money for his family in
Honduras was insufficient to demonstrate that sentencing judge
would have imposed lower sentence under advisory guidelines), cert.
denied, 126 U.S. 202 (2005).
Cantu-Marichalar contends that application of the plain error
standard is inappropriate because it would have been futile for him
to have objected to application of the mandatory guidelines in the
light of Fifth Circuit precedent existing at the time of his
sentencing, or because the remedial portion of Booker was novel and
unforeseeable at the time of his sentencing. As he acknowledges,
these arguments are foreclosed by this court’s decision in Mares.
Finally, Cantu-Marichalar contends that the Booker error was
structural and that prejudice should be presumed. This contention
is also foreclosed by Mares. See United States v. Martinez-Lugo,
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411 F.3d 597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005);
United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert.
denied, 126 S.Ct. 194 (2005).
For the foregoing reasons, 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 Cantu-Marichalar’s conviction and sentence.
JUDGMENT REINSTATED.
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