United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-51231
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO JIMENEZ-GANDARA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1408-ALL
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Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mario Jimenez-Gandara (“Jimenez”) appeals his sentence for
having been found in the United States after having been
deported, in violation of 8 U.S.C. § 1326(a) and (b). Jimenez
contends that his sentence must be vacated in light of United
States v. Booker, 125 S. Ct. 738 (2005), because the district
court was under the mistaken impression that the Sentencing
Guidelines were mandatory rather than advisory. He maintains
*
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this opinion should not be published and is not precedent except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. 04-51231
-2-
that this was a “structural” error that affected the “framework”
of the entire proceeding against him.
We review Jimenez’s contention for plain error because he
did not raise the issue in the district court. United States v.
Valenzuela-Quevedo, ___ F.3d ___, No. 03-41754 (5th Cir. April
25, 2005), 2005 WL 941353, at *3 . We agree with Jimenez that
the district court plainly erred when it sentenced him pursuant
to a mandatory guidelines system. See Booker, 125 S. Ct. at 750,
768-69. Jimenez has not met his burden of establishing plain
error, however, because the record does not suggest that the
district judge would have imposed a different sentence had she
been aware that the sentencing guidelines are merely advisory.
Valenzuela-Quevedo, 2005 WL 941353, at **3-4.
AFFIRMED.