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. 04-40956
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR JAVIER MARTINEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-23-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Oscar Javier Martinez-Martinez (Martinez) appeals the
sentence imposed following his guilty-plea conviction for illegal
entry. Martinez argues that the district court erred by imposing
a two-level upward adjustment to his sentence for obstruction of
justice and denying a two-level downward adjustment for
acceptance of responsibility. Martinez contends that the
obstruction of justice adjustment was based on facts to which he
*
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this opinion should not be published and is not precedent except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. 04-40956
-2-
did not admit, which were not found by a jury beyond a reasonable
doubt, and which were not charged in the indictment.
Because Martinez raises these issues for the first time on
appeal, we review only 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). We may correct forfeited
errors only when: (1) there is an error, (2) that is clear or
obvious, and (3) that affects the appellant’s substantial rights.
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)
(en banc) (citing United States v. Olano, 507 U.S. 725, 731-37
(1993)).
During the pendency of this appeal, the Supreme Court held
in United States v. Booker, 125 S. Ct. 738, 756 (2005), that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Accordingly, application of the adjustment for
obstruction of justice constitutes error under Booker and that
error is now plain in light of Booker. Even if we assume,
arguendo, that the district court also committed Booker error by
denying a downward adjustment for acceptance of responsibility,
Martinez has not met the third prong of the plain error test
because he has made no showing that he would have received a
lesser sentence had the district court sentenced him under an
No. 04-40956
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advisory application of the sentencing guidelines. See United
States v. Holmes, 406 F.3d 337, 365-66 (5th Cir. 2005).
AFFIRMED.