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. 04-30995
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:98-CR-279-ALL
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Before DAVIS, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rafael Cruz pleaded guilty to two counts of distribution of
heroin and was sentenced to 97 months of imprisonment on each
count, to run concurrently, three years of supervised release on
each count, to run concurrently, and a $200 special assessment.
Cruz argues that under United States v. Booker, 125 S. Ct. 738
(2005), his Sixth Amendment right to a jury trial was violated
when the district court adjusted his sentence for obstruction of
justice and did not adjust his sentence for acceptance of
*
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this opinion should not be published and is not precedent except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. 04-30995
-2-
responsibility based on a fact that was not found by a jury
beyond a reasonable doubt. Although the obstruction of justice
adjustment was based on several facts, Cruz contests only the
district court’s finding that he fled the jurisdiction to avoid
prosecution. Cruz concedes that he admitted in a factual basis
that he fled the jurisdiction to avoid prosecution, but he argues
that he signed the factual basis before Blakely v. Washington,
124 S. Ct. 2531 (2004), was decided and that he would not have
waived his Sixth Amendment right to a jury trial concerning this
fact if he had known that Booker would subsequently require a
jury to find a fact used to adjust his sentence.
Cruz does not contest the fact that he fled the jurisdiction
in an attempt to evade authorities. Rather, he argues only that
he would not have admitted this fact if he had known that he had
a right to have a jury determine it under Booker. However,
neither the pre-Booker nor the post-Booker regime required Cruz
to make such an admission, and Cruz offers no explanation why a
different fact finder and a different standard of review would
have affected his actions. See United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517); United States v. Hull, 160 F.3d 265, 269
(5th Cir. 1998). Furthermore, Booker does not entitle Cruz to a
jury determination of the contested fact. See Mares, 402 F.3d at
518-19. Rather, in the post-Booker regime, Cruz is entitled only
to a district court determination of an advisory guidelines range
No. 04-30995
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using a preponderance of the evidence standard of review and a
consideration of the other sentencing factors set forth in 18
U.S.C. § 3553(a). See id.
AFFIRMED.