United States v. Echavarria , 138 F. App'x 678 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-41047
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ECHAVARRIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-272-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Echavarria appeals his guilty-plea conviction of
possession with intent to distribute more than 100 kilograms
(approximately 226 kilograms) of marijuana. Echavarria argues
that the district court misapplied the Sentencing Guidelines by
assigning one criminal history point to his Nebraska state
misdemeanor conviction for flight to avoid arrest. He argues for
the first time on appeal that this conviction should not have
earned any criminal history points because, under Nebraska law,
*
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this opinion should not be published and is not precedent except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. 04-41047
-2-
flight to avoid arrest is similar to resisting arrest under
U.S.S.G. § 4A1.2(c)(1). He further argues that this error
affected his substantial rights and requires a remand for
resentencing.
As Echavarria concedes, review is for plain error. To
establish plain error, Echavarria must demonstrate an obvious
legal error that affects his substantial rights. See United
States v. Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc).
“[I]n order for plain error to affect substantial rights, the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” United States v.
Leonard, 157 F.3d 343, 346 (5th Cir. 1998) (internal quotation
marks and citation omitted).
In the context of a sentencing issue reviewed for plain
error, we have held that “if the trial judge, on remand, could
reinstate the same sentence, it will uphold the sentence imposed
despite the trial court’s error.” Id.; see also United States v.
Wheeler, 322 F.3d 823, 828 (5th Cir. 2003) (under plain-error
review, “the question is not whether the district court would
have chosen the same sentence absent the error, but whether it
could have done so”). Here, if Echavarria’s criminal history
score had been nine, his criminal history category would have
been IV, and the guideline range would have been 70 to 87 months.
Because the district court, on remand, could reinstate the same
sentence for Echavarria, any error in the district court’s
No. 04-41047
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guideline calculation does not warrant relief under plain-error
review. See Wheeler, 322 F.3d at 828; see also Leonard, 157 F.3d
at 346.
Echavarria also argues that under Apprendi v. New Jersey,
530 U.S. 466 (2000), the provisions of 21 U.S.C. § 841(a) and (b)
are facially unconstitutional. As Echavarria concedes, we have
rejected the argument that Apprendi rendered 21 U.S.C. § 841’s
sentencing provisions facially unconstitutional. See United
States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); United
States v. Fort, 248 F.3d 475, 482-83 (5th Cir. 2001).
In his supplemental brief, filed after the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005),
Echavarria argues that plain error occurred in his case because
he was sentenced under mandatory guidelines. He asserts that his
sentence should be vacated and the matter remanded for
resentencing.
Echavarria has not established that this error affected his
substantial rights. The record does not establish that the
sentencing court would have imposed a different sentence had it
been proceeding under an advisory guideline scheme. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir.
2005). The district court’s judgment is AFFIRMED.