United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-40657
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO RUIZ-BECERRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1923-2
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Rolando Ruiz-Becerra (Ruiz-Becerra) appeals his guilty plea
conviction and sentence for transporting an illegal alien within
the United States for private financial gain by means of a motor
vehicle in violation of 8 U.S.C. § 1324.
For the first time on appeal, Ruiz-Becerra contends that his
sentence is unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and
Blakely v. Washington, 124 S. Ct. 2531 (2004). Specifically,
*
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this opinion should not be published and is not precedent except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. 04-40657
-2-
Ruiz-Becerra contends that the district court violated his Sixth
Amendment right to a jury trial when it enhanced his sentence
beyond the relevant statutory maximum based on the district
judge’s finding that he obstructed justice because this finding
was neither admitted by him nor made by a jury based on proof
beyond a reasonable doubt. Because Ruiz-Becerra did not object
on this basis in the district court, this court’s review is for
plain error. See United States v. Mares, ___ F.3d ___, No. 03-
21035, 2005 WL 503715 at *7 (5th Cir. Mar. 4, 2005), petition for
cert. filed, No. 04-9517 (U.S. Mar. 31, 2005).
Even if Ruiz-Becerra’s sentence was enhanced based on facts
that were neither admitted by him nor found by a jury beyond a
reasonable doubt, he has not demonstrated that this plain error
affected his substantial rights. Ruiz-Becerra 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
found that a total offense level of 14 was proper and sentenced
Ruiz-Becerra in the middle of the 18 to 24 month guideline
sentencing range. Given the lack of evidence indicating that the
district court would have reached a different conclusion, Ruiz-
Becerra has failed to establish plain error. See Mares, 2005 WL
No. 04-40657
-3-
503715 at **8-9. Accordingly, the district court’s judgment is
AFFIRMED.