United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 14, 2005
Charles R. Fulbruge III
Clerk
03-41071
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMANEGILDO ALANIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-02-CR-340-5)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On a previous appeal, we affirmed Hermanegildo Alaniz’s gulity
plea conviction and sentence for conspiracy to possess more than
100 kilograms of marijuana with intent to distribute. United
States v. Alaniz, 03-41071, 2004 WL 1427086 (5th Cir. 23 June
2004). The Supreme Court granted a writ of certiorari; vacated the
judgment; and remanded for further consideration in the light of
*
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this opinion should not be published and is not precedent except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.
United States v. Booker, 125 S. Ct. 738 (2005). Alaniz v. U.S.,
125 S. Ct. 1022 (2005).
Based on Apprendi v. New Jersey, 530 U.S. 466 (2000), Alaniz
first challenged the constitutionality of his conviction and
sentence, in his appeal to our court. Because Alaniz did not raise
in district court his objection to the constitutionality of his
sentence, our review is only for plain error. United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,
(U.S. 31 Mar. 2005) (No. 04-9517). Under plain-error review, our
court may correct a defendant's sentence only if there is a clear
or obvious error that affects his substantial rights. E.g., United
States v. Cotton, 535 U.S. 625, 631 (2002). Even then, we retain
discretion whether to correct the error; generally, we will not do
so unless the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.
Alaniz has met the first two prongs of plain error: the
district court erred in sentencing him under a mandatory, as
opposed to advisory, guidelines regime; and that error was “plain”.
To satisfy the third prong, Alaniz must show by “a reasonable
probability that, but for the error claimed, the result of the
proceeding would have been different”. United States v. Dominguez-
Benitez, 124 S. Ct. 2333, 2339 (2004) (quotation and internal
brackets omitted). Thus, the inquiry is whether Alaniz can
demonstrate the result of his proceeding would have likely been
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significantly different under an advisory regime. Mares, 402 F.3d
at 521. Alaniz has pointed to nothing in the record indicating
that the district court would have sentenced him differently under
an advisory sentencing regime. (For possible further review, he
maintains Mares is erroneous.) Therefore, he has not established
that his substantial rights were affected. Accordingly, we
reinstate our judgment affirming Alaniz’s conviction and sentence.
AFFIRMED
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