United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-41590
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DIANA PATRICIA GAMBOA
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-442-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.
PER CURIAM:*
Diana Patricia Gamboa appeals the sentence imposed following
her guilty-plea conviction for possession with intent to
distribute more than file kilograms (5.45 kilograms) of cocaine.
She argues that the district court committed reversible plain
error in sentencing her pursuant to the mandatory United States
Sentencing Guidelines held unconstitutional in United States v.
Booker, 125 S. Ct. 738 (2005). Gamboa argues that the error is
structural, presumptively prejudicial, and, therefore, she need
*
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this opinion should not be published and is not precedent except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. 04-41590
-2-
not show plain error. This court has rejected this argument and
applied the plain error standard of review to such unpreserved
claims. See United States v. Malveaux, ___ F.3d ___, No. 03-
41618, 2005 WL 1320362, *1 n.9 (5th Cir. Apr. 11, 2005); see also
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005)
(applying plain error standard of review), petition for cert.
filed, No. 04-9517 (U.S. Mar. 31, 2005). The district court’s
application of the Guidelines in their mandatory form constituted
error that is plain. See United States v. Valenzuela-Quevedo,
407 F.3d 728, 733 (5th Cir. 2005). However, Gamboa has not shown
that the error affected her substantial rights as the record
gives no indication that the district court judge would have
sentenced her any differently had he known that the Guidelines
were only advisory. See Mares, 402 F.3d at 522. Therefore,
Gamboa has not shown that the district court’s imposition of her
sentence under the mandatory Guidelines constituted reversible
plain error. See id.
For the first time on appeal, Gamboa argues that 21 U.S.C.
§ 841, the statute under which she was convicted, is
unconstitutional in view of Apprendi v. New Jersey, 530 U.S. 466
(2000). Gamboa acknowledges that her argument is foreclosed by
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),
but states that she is raising it to preserve it for possible
Supreme Court review. The issue is indeed foreclosed. See
No. 04-41590
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Slaughter, 238 F.3d at 582; Valenzuela-Quevedo, 407 F.3d at 731
(same).
Gamboa argues, and the Government concedes, that the case
should be remanded to allow the district court to correct a
clerical error in the judgment to reflect the district court’s
recommendation that Gamboa be placed in a federal correctional
institution in or near California. “After giving any notice it
considers appropriate, the court may at any time correct a
clerical error in a judgment, order, or other part of the record,
or correct an error in the record arising from oversight or
omission.” FED. R. CRIM. P. 36. The error is obvious, and the
district court may correct such an error at any time under FED.
R. CRIM. P. 36. Accordingly, the case is REMANDED for the limited
purpose of conforming the judgment to the oral recommendation
that Gamboa be placed in a federal correctional institution in or
near California. Id.
AFFIRMED; LIMITED REMAND TO CORRECT JUDGMENT.