United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2005
Charles R. Fulbruge III
Clerk
No. 03-50621
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE SANCHEZ-CARRASCO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-02-CR-00250-ALL
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Jorge Sanchez-Carrasco
(“Sanchez”). United States v. Sanchez-Carrasco, 115 Fed. Appx.
756 (5th Cir. 2005)(per curiam). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). Sanchez-Carrasco v. United
States, 125 S. Ct. 1419 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 03-50621
-2-
Sanchez argues that the sentence imposed for his convictions
of transporting a minor with intent to engage in prohibited
sexual conduct, importing an alien for immoral purposes, and
harboring an illegal alien were unlawful under United States v.
Booker, 125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S.
Ct. 2531 (2004). Sanchez concedes that he did not raise a
constitutional challenge to his sentence in the district court.
Accordingly, this court’s review is for plain error only. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
Under the plain-error standard of review, the defendant
bears the burden of showing that (1) there is an error, (2) the
error is plain, and (3) the error affects substantial rights.
See United States v. Olano, 507 U.S. 725, 732 (1993). If these
conditions are satisfied, this court may exercise its discretion
to correct the error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.” Id. at 736-37 (internal quotation marks and
citation omitted).
To satisfy the third prong of the plain error test in light
of Booker, a defendant is required to demonstrate “with a
probability sufficient to undermine confidence in the outcome,
that if the judge had sentenced him under an advisory sentencing
regime rather than a mandatory one, he would have received a
lesser sentence.” United States v. Infante, 404 F.3d 376, 395
No. 03-50621
-3-
(5th Cir. 2005). Absent any indication in the record that the
district court would have imposed a lower sentence, a defendant
does not meet this burden. See Mares, 402 F.3d at 522.
Sanchez argues that he can show plain error because the
district court refused to grant the Government’s motion for an
upward departure. He also contends that the district expressed
doubt as to whether a lengthy sentence would be of value in
rehabilitating him.
Sanchez has not pointed to anything in the record to
indicate that the district court would have imposed a lower
sentence under advisory Sentencing Guidelines. Accordingly,
Sanchez has not met his burden of establishing that his
substantial rights were affected under the third prong of the
plain error test. See Mares, 402 F.3d at 522.
The judgment of the district court is AFFIRMED.