United States v. Martinez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III
No. 04-41191 Clerk
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABEL MARTINEZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1093-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellant Abel Martinez, in reliance on United States v.

Booker, 125 S. Ct. 738 (2005), contends that the district court

plainly erred in sentencing him under a mandatory Federal

Sentencing Guidelines system that Booker held to be

unconstitutional. He contends that he is entitled to be

resentenced because the error affected his substantial rights.

Plain error is the correct standard of review. United

States v. Malveaux, __F.3d__, No. 03-41618, 2005 WL 1320362 at *1

n.9 (5th Cir. Apr. 11, 2005). To demonstrate plain error,

*
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this opinion should not be published and is not precedent except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. 04-41191
-2-

Martinez has the burden of showing an error that is obvious and

that affects his substantial rights. United States v. Mares,

402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005) (No. 04-9517). To show that the error affected

his substantial rights, Martinez has the burden of demonstrating

that “the sentencing judge--sentencing under an advisory scheme

rather than a mandatory one--would have reached a significantly

different result.” Id. at 521. Thus, because Martinez has not

shown that the district court would have imposed a different

sentence, he is not entitled to relief on authority of Booker.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33

(5th Cir. 2005).

Martinez also contends that 21 U.S.C. §§ 952 and 960(a) and

(b) are unconstitutional in light of the Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Martinez

acknowledges that his argument is foreclosed by this court’s

precedent, but he seeks to preserve the issue for Supreme Court

review. Martinez’s argument is foreclosed. See United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

AFFIRMED.