United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 03-51161
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
EDGAR PORFIRIO ROCHA, also known as Edgar Porfirio-Rocha,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-420-1-AML
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Edgar Porfirio Rocha appeals the sentence imposed following
his conviction for conspiracy to possess marijuana with intent to
distribute and aiding and abetting the possession of marijuana
with intent to distribute. Finding no error, we affirm.
Rocha’s first argument is that the district court erred in
applying the U.S.S.G. § 4B1.1 career offender enhancement to him
based on a prior conviction for sexual assault of a minor. Rocha
contends that the conviction was actually for statutory rape,
*
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this opinion should not be published and is not precedent except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. 03-51161
-2-
which, according to Rocha, is not a crime of violence for
purposes of § 4B1.1. Whatever the merits of his argument, Rocha
waived the issue by failing to reurge it at the second sentencing
hearing and by conceding that he was a career offender. See
United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995).
Unlike forfeited issues, which are reviewed for plain error,
waived issues are completely unreviewable. Id. Even if we were
to review for plain error, Rocha’s claim would fail because he
has not shown that the error affected his substantial rights.
See United States v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998).
We likewise reject Rocha’s argument that, pursuant to
Blakely v. Washington, 124 S. Ct. 2531 (2004), which was extended
to the federal guidelines by United States v. Booker, 125 S. Ct.
738, 756 (2005), the district court erred by enhancing his
sentence based on the court’s findings regarding drug quantity
and Rocha’s role as a leader. As Rocha did not raise this issue
in the district court, we review his sentence for plain error.
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005) (No. 04-9517).
The record is devoid of any indication that the district
court would have imposed a lower sentence under an advisory as
opposed to a mandatory sentencing guidelines scheme. See id. at
521-22. Accordingly, Rocha cannot show that the sentence
affected his substantial rights. Id.
No. 03-51161
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For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.