United States v. Saenz , 169 F. App'x 290 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-40573
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
EDUARDO SAENZ,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2031-ALL
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Eduardo Saenz pleaded guilty to transporting an undocumented
alien for purpose of commercial advantage or private financial
gain within the United States by means of a motor vehicle. Saenz
was sentenced to a 44-month term of imprisonment and to a three-
year period of supervised release. Saenz gave timely notice of
his appeal.
Saenz’s offense occurred prior to the decision in United
States v. Booker, 543 U.S. 220 (2005), and he was sentenced after
*
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this opinion should not be published and is not precedent except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. 05-40573
-2-
Booker was decided. Saenz argues that, although he is entitled
to retroactive application of Booker’s Sixth Amendment holding,
the remedial portion of Booker’s holding, which made the
Sentencing Guidelines advisory, may not be applied in his case
without violating the Due Process and Ex Post Facto Clauses of
the Constitution. Saenz thus argues that the district court
should have applied the sentencing guidelines as mandatory in his
case but should not have enhanced his sentence based on facts
that were not charged in the indictment and were neither admitted
by him nor found by a jury beyond a reasonable doubt. As Saenz
concedes, this question is foreclosed. See United States v.
Austin, 432 F.3d 598, 599–600 (5th Cir. 2005); United States v.
Scroggins, 411 F.3d 572, 575–76 (5th Cir. 2005). He has raised
the issue to preserve it for further review. The judgment is
AFFIRMED.