United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-10843
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUANITA GONZALEZ ROCHA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-335-ALL-A
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Juanita Gonzalez Rocha (Rocha) appeals her guilty plea
conviction and sentence for possession of stolen mail in
violation of 18 U.S.C. § 1708.
For the first time on appeal, Rocha contends that the
district court erred when it upwardly departed based on its
finding that she was engaged in narcotics trafficking while
awaiting sentencing because (1) the finding was neither admitted
by her nor made by a jury beyond a reasonable doubt, and (2) the
*
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this opinion should not be published and is not precedent except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. 04-10843
-2-
finding was inconsistent with the district court’s earlier order
allowing her to remain out on release pending sentencing.
Because Rocha did not object to the upward departure in the
district court, this court’s review is for plain error. See
United States v. Mares, ___ F.3d ___, 2005 WL 503715, *7 (5th
Cir. March 4, 2005).
After Rocha’s appellate brief was filed but before the
Government submitted its brief, the Supreme Court issued its
decision in United States v. Booker, 125 S. Ct. 738 (2005). In
Booker, the Supreme Court held that “[a]ny fact (other than a
prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” Id. at
756. Further, the Court excised 18 U.S.C. § 3553(b)(1) of the
Sentencing Reform Act, rendering the Federal Sentencing
Guidelines effectively advisory. Id. at 764-65.
Even if Rocha could establish Booker error, she has not
demonstrated that this error affected her substantial rights.
Rocha has failed to point to any evidence in the record
indicating that the same sentence would not have been imposed had
the district court known that the Guidelines were advisory. The
record itself gives no indication that the district court would
have reached a different result under an advisory guidelines
scheme. The district court, in its discretion, upwardly departed
No. 04-10843
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from the 10 to 16 month guideline sentencing range and sentenced
Rocha to 28 months of imprisonment based on its determination
that the guideline sentencing range was not adequate to take into
account Rocha’s criminal conduct and the likelihood of
recidivism. Given the lack of evidence indicating that the
district court would have reached a different conclusion, Rocha
has not demonstrated that her substantial rights were affected,
and, thus, she has failed to establish plain error. See Mares,
2005 WL 503715 at **8-9.
Further, the district court’s finding at sentencing that
Rocha was engaged in narcotics trafficking was not inconsistent
with its earlier finding that Rocha violated a condition of
release by failing to report the incident to pretrial services.
Thus, Rocha has failed to establish plain error. See id. at *8.
Accordingly, the district court’s judgment is AFFIRMED.