United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-20378
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVENCIO RUBIO-RUBIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-170-ALL
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Before DAVIS, SMITH and DENNIS, Circuit Judges
PER CURIAM:*
Evencio Rubio-Rubio appeals his sentence following his guilty-
plea conviction for illegal reentry after deportation, a violation
of 8 U.S.C. § 1326. Rubio-Rubio argues that the district court
erred by imposing his sentence under the mandatory guidelines
scheme held unconstitutional in United States v. Booker, 125 S. Ct.
738 (2005). Because Rubio-Rubio did not raise this issue in the
district court, review is limited to plain error. See United
States v. Vonn, 535 U.S. 55, 59 (2002). The district court erred
*
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this opinion should not be published and is not precedent except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. 04-20378
-2-
in imposing Rubio’s sentence under the mandatory Guidelines scheme,
and this error was obvious after Booker. See United States v.
Valenzuela-Quevedo, __ F.3d __, No. 03-41754, 2005 WL 941353 at *4
(5th Cir. Apr. 25, 2005). However, Rubio-Rubio has not shown that
the error affected his substantial rights as he has not shown that
the record shows the district court judge would have imposed a
different or lesser sentence under a Booker advisory regime. See
id. at **4-5. Therefore, he has not met the requirements to show
plain error.
AFFIRMED.