United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-40681
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE FERNANDEZ-PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-10-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Guadalupe Fernandez-Pena ("Fernandez") appeals his sentence
following a guilty plea to one count of transportation of an
unlawful alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and
(a)(1)(B)(ii). Fernandez argues that the district court
erroneously determined his guidelines offense level by holding
him accountable under relevant conduct for the transportation of
additional aliens approximately 20 months before the offense of
conviction. He asserts that this conduct was too remote and
*
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this opinion should not be published and is not precedent except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. 04-40681
-2-
insufficiently similar to the offense of conviction to constitute
relevant conduct.
The 20-month gap between the conduct at issue is not
automatically too remote for consideration as relevant conduct.
See United States v. Miller, 179 F.3d 961, 967 n.10 (5th Cir.
1999). In both the offense of conviction and the prior conduct,
Fernandez, accompanied by a resident alien, transported a similar
number of illegal aliens in the back of a van from in or near
Falfurrias, Texas, and he was heading, inter alia, to Houston.
Fernandez was to be paid for his efforts, and in both instances
at least some of the aliens were housed at a motel prior to
transportation. Both cases involved a similar modus operandi,
and in light of the similarity of the offenses, the district
court did not clearly err in including the prior conduct as
relevant conduct. See United States v. Anderson, 174 F.3d 515,
527 (5th Cir. 1999); U.S.S.G. § 1B1.3(a)(2).
Fernandez also argues for the first time on appeal that his
sentence must be vacated because the district court’s factual
findings on relevant conduct violated United States v. Booker,
125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531
(2004). Because Fernandez did not object in the district court
on the same ground that he raises on appeal our review is for
plain error. See United States v. Krout, 66 F.3d 1420, 1434 (5th
Cir. 1995); United States v. Cabral-Castillo, 35 F.3d 182, 188-89
(5th Cir. 1994). Fernandez has shown a clear or obvious error.
No. 04-40681
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However, because there is no indication in the record from the
district court’s remarks or otherwise that indicates whether the
district court would have reached a different conclusion,
Fernandez cannot meet his burden of showing that the result would
have likely been different had the district court been sentencing
under the Booker advisory scheme rather than the pre-Booker
mandatory regime, and the plain error standard has not been
satisfied. See United States v. Mares, __ F.3d __, No. 03-21035,
2005 WL 503715 at *8-9 (5th Cir. Mar. 4, 2005).
AFFIRMED.