United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 1, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50665
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSALINDA LEYVA-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-124-ALL-DB
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rosalinda Leyva-Garcia was sentenced to serve concurrent
terms of 54 months of imprisonment and three years of supervised
release after she pleaded guilty to one count of importation of
more than 50 kilograms of marijuana and one count of possession
with intent to distribute more than 50 kilograms of marijuana.
Leyva-Garcia appeals her sentence.
Leyva-Garcia did not file a timely notice of appeal; she
filed a motion for an extension of time to file a notice of
appeal within the period allowed in FED. R. APP. P. 4(b)(4).
*
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this opinion should not be published and is not precedent except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. 04-50665
-2-
The district court denied the motion, and Leyva-Garcia timely
appealed from that order. We, however, pretermit consideration
of the jurisdictional issue. United States v. Alvarez, 210 F.3d
309, 310 (5th Cir. 2000); United States v. Weathersby, 958 F.2d
65, 66 (5th Cir. 1992) (pretermitting jurisdictional issue where
party could not prevail even if jurisdiction existed).
Leyva-Garcia contends for the first time on appeal that the
district court’s finding that she was responsible for 511
kilograms of marijuana violates Blakely v. Washington, 124 S. Ct.
2531, 2537 (2004), as well as her Fifth and Sixth Amendment
rights because the finding was not made by a jury and was not
based on facts that she admitted. Our review is for plain error.
United States v. Infante, ___ F.3d ___, 2005 WL 639619, *13 (5th
Cir. Mar. 21, 2005). To demonstrate plain error, Leyva-Garcia
must demonstrate an error that is obvious and that affects her
substantial rights. See United States v. Mares, 402 F.3d 511,
520 (5th Cir. 2005), petition for cert. filed, No. 04-9517
(March 31, 2005).
Although Leyva-Garcia has shown obvious error, she has not
demonstrated that the error affected her substantial rights.
See Mares, 402 F.3d at 521. She has not shown that the error
“‘affected the outcome of the district court proceedings’” and
that “the sentencing judge--sentencing under an advisory scheme
rather than a mandatory one--would have reached a significantly
different result.” Id. (citation omitted).
No. 04-50665
-3-
Accordingly, Leyva-Garcia has not shown plain error, and her
sentence is AFFIRMED. See id. at 520-22.