United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
Charles R. Fulbruge III
Clerk
No. 03-40228
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO GARCIA-CORONADO, also known as Poncho,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 04-8039
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
*
PER CURIAM:
We dismissed Alfonso Garcia-Coronado’s (Garcia’s) appeal of
the district court’s sentence for conspiracy to transport and
harbor aliens for financial gain. See United States v. Garcia-
Coronado, 108 Fed. Appx. 939 (5th Cir. 2004), vacated by 125 S.
Ct. 1362 (2005). He argued that his sentence constituted
*
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that this opinion should not be published and is not precedent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.
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reversible error because, inter alia, the district court violated
his Sixth Amendment rights under Blakely v. Washington, 124 S.
Ct. 2531 (2004). We dismissed his appeal, ruling that reversal
of Garcia’s sentence on Blakely grounds was foreclosed by United
States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated by 125
S. Ct. 1003 (2005). Garcia subsequently appealed to the U.S.
Supreme Court. The Supreme Court vacated this Court’s judgment
and remanded for further consideration in light of United States
v. Booker, 125 S. Ct. 738 (2005).
Garcia entered into a plea agreement wherein he waived his
right to appeal a sentence imposed within the U.S. Sentencing
Guideline range. The district court followed the applicable
guidelines in this case. Thus, Garcia’s Booker argument is
foreclosed by his plea agreement. See United States v. McKinney,
__ F.3d __, 2005 U.S. App. LEXIS 6530, *6-10 (5th Cir. Apr. 15,
2005).
Assuming arguendo that we could entertain a Booker-based
appeal of Garcia’s sentence, we still would not reverse his
sentence or vacate it and remand for resentencing. Garcia did
not object on Sixth Amendment/Booker grounds to his sentence in
the district court. Therefore, we would review his sentence for
plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005). Under that standard we will reverse if an appellant can
show that (1) there is error; (2) the error is plain; and (3) the
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error affects “substantial rights,” i.e., the error “must have
affected the outcome of the district court proceedings.” United
States v. Olano, 507 U.S. 725, 732-34 (1993). “‘If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
“seriously affects the fairness, integrity, or public reputation
of judicial proceedings.”’” United States v. Cotton, 535 U.S.
625, 631 (2002) (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)).
Assuming Garcia’s sentence constitutes Booker error, we find
that his substantial rights were not affected. In order to show
that substantial rights were affected, Garcia must “demonstrate[]
that the sentencing judge--sentencing under an advisory scheme
rather than a mandatory one--would have reached a significantly
different result.” Mares, 402 F.3d at 521. A review of the
sentencing hearing does not yield any evidence that the
sentencing judge would have reached a different result. Thus, on
this ground, we affirm Garcia’s sentence in the alternative.
Accordingly, we reinstate our prior judgment affirming
Garcia’s sentence.
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