United States Court of Appeals
Fifth Circuit
F I L E D
In the
July 22, 2005
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 03-40886
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO JAVIER CRUZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH and WIENER, Cruz concedes that review is only for plain
Circuit Judges.* error, because he made no objection in the dis-
trict court based on Booker or on Blakely v.
PER CURIAM: Washington, 542 U.S. 296 (2004), on which
Booker was based. See United States v. Mar-
This court affirmed Francisco Cruz’s con- es, 402 F.3d 511, 520 (5th Cir. 2005), petition
viction and sentence. United States v. Cruz, for cert. filed (Mar. 31, 2005) (No. 04-9517).
388 F.3d 150 (5th Cir. 2004). The Supreme “An appellate court may not correct an error
Court vacated and remanded for further con- the defendant failed to raise in the district
sideration in light of United States v. Booker, court unless there is ‘(1) error, (2) that is plain,
125 S. Ct. 738 (2005). Cruz v. United States, and (3) that affects substantial rights.’” Id.
125 S. Ct. 1969 (2005). We requested and re- (quoting United States v. Cotton, 535 U.S.
ceived supplemental letter briefs addressing the 625, 631 (2002)).
impact of Booker.
I.
Cruz was convicted by a jury of importation The government claims there is no Booker
and possession with intent to distribute 20 ki- error to satisfy the first prong, because “Cruz’s
lograms of cocaine. The jury was instructed guidelines calculation did not include any en-
that it must find beyond a reasonable doubt hancement based on extra-verdict facts.” His
that “the substance was, in fact, cocaine and base offense level of 34 was identified because
weighed 20 kilograms, more or less, 45 it is the level for drug offenses involving “at
pounds, more or less.” Cruz was sentenced to least 15KG but less than 50KG of Cocaine.”
210 months’ imprisonment and five years’ su-
pervised release. As the government points out, there was
sufficient evidence from which the jury could
Cruz claims there is error under Booker be- determine, beyond a reasonable doubt, that the
cause he “was sentenced under a Guidelines net weight exceeded the 15 kilograms neces-
range greater than that authorized solely by the sary to invoke offense level 34. For example,
jury’s verdict, based upon a net-drug-weight one of the agents testified that the cocaine
finding made by the district court by (Presum- bricks that were recovered weighed 20.52
ably) only a preponderance of the evidence.” kilograms. As we concluded in this appeal, “it
Further, Cruz asserts Booker error “because appears quite unlikely that the difference be-
Mr. Cruz was sentenced under the assumption tween the net weight of the cocaine alone, and
of a mandatory Guidelines system that was the cocaine in its thin packing exceeded the
held unconstitutional in Booker.” 5.52 kilograms that would be required in order
to make a difference in Cruz’s sentence.”
Cruz, 388 F.3d at 157-58. There is no Booker
* error based on any lack of sufficient findings
Judge Pickering was a member of this panel
by a jury beyond a reasonable doubt.
when the opinion issued on October 7, 2004, but
subsequently retired. Accordingly, this matter is
decided by a quorum. See 28 U.S.C. § 46(d).
2
II. did raise sentencing issues based on Blakely,
Cruz fares better in the second argument
presented in his supplemental brief, which is
that he was unconstitutionally sentenced under 1
(...continued)
a guidelines regime that was understood to be United States v. Higginbotham, No. 04-50018,
mandatory, in contravention of Booker. We 2005 U.S. App. LEXIS 11788, at *2-*3 (5th Cir.
conclude that he is due a remand. June 20, 2005) (per curiam) (unpublished) (refus-
ing to consider Booker issues because defendant
A. “raised no sentencing issues in his [initial] appeal
The government claims that Cruz is barred to this court” and raised in his certiorari petition,
from arguing now that sentencing under a “for the first time in any forum, Booker-related
mandatory guideline system is unconstitution- sentencing issues”); United States v. Madrazo-
al. The government cites United States v. Constante, No. 04-40374, 2005 U.S. App. LEXIS
11862, at *2 (5th Cir. June 20, 2005) (per curiam)
Taylor, 409 F.3d 675, 676 (5th Cir. 2005) (per
(unpublished) (declining to consider Booker ques-
curiam), in which we held that, absent extraor- tion because defendant “challenged the constitu-
dinary circumstances, we will not consider tionality of the Sentencing Guidelines as applied to
Booker arguments raised for the first time in a him for the first time in his petition for writ of
petition for writ of certiorari. Cruz did raise, certiorari”); United States v. Elizarraraz, No. 03-
in this court, before we issued our opinion, 40728, 2005 U.S. App. LEXIS 11712, at *2 (5th
arguments based on Blakely. Cir. June 17, 2005) (per curiam) (unpublished)
(refusing to consider Booker issues where defen-
Cruz has sufficiently raised the issue for us dant “challenged the constitutionality of the Sen-
to consider it. In applying Taylor to assertions tencing Guidelines as applied to him for the first
of Booker error made for the first time in cer- time in his petition for a writ of certiorari”); United
tiorari petitions, we generally have applied the States v. Marquez-Gomez, No. 04-50154, 2005
bar where the defendant has failed to raise any U.S. App. LEXIS 11733, at *3 (5th Cir. June 17,
Booker- or Blakely-related issues before filing 2005) (per curiam) (unpublished) (declining to
consider Booker issues because defendant “did not
his certiorari petition.1 Here, however, Cruz
raise any Booker-related challenges to his sentence
until his petition for certiorari”); United States v.
Santillana, No. 03-40975, 2005 U.S. App. LEXIS
1
E.g., United States v. Ogle, No. 03-60833, 11329, at *2 (5th Cir. June 15, 2005) (per curiam)
2005 U.S. App. LEXIS 12714, at *2 (5th Cir. June (unpublished) (refusing to address Booker issues
27, 2005) (per curiam) (stating that Booker issues because “[f]or the first time in his petition for writ
were waived “[b]ecause [defendant] did not raise of certiorari, [defendant] challenged the constitu-
any Booker-related challenges to his sentence until tionality of is sentence based on the then-recent
his petition for certiorari” and because in his certio- holding in Blakely”); United States v. Rubio, No.
rari petition he “challenged for the first time the 03-40837, 2005 U.S. App. LEXIS 11167, at *2-*3
constitutionality of the Sentencing Guidelines as (5th Cir. June 13, 2005) (per curiam) (unpub-
applied to him”); United States v. Kennedy, No. lished) (same); United States v. Gutierrez, No. 03-
03-11334, 2005 U.S. App. LEXIS 12672, at *5 41458, 2005 U.S. App. LEXIS 10518, at *3 (5th
(5th Cir. June 21, 2005) (per curiam) (unpub- Cir. June 7, 2005) (per curiam) (unpublished)
lished) (declining to consider Booker issues be- (stating that we “will not review” claim “[b]ecause
cause defendant “raised alleged Booker error for [defendant] did not raise any Booker-related chal-
the first time in his petition for writ of certiorari”); lenges to his sentence until his petition for certio-
(continued...) rari”).
3
so we will consider all his assertions of Blake- After Cruz’s allocution, the court stated the
ly and Booker error now on remand. following: “You finally made it to the big
court. And the big court is governed by the
B. Sentencing Guidelines. Nobody in this room
“Technically, this is a “Fanfan error, not a can do anything for you.” The court then im-
Booker error.” United States v. Martinez-Lu- posed the minimum sentence under the appli-
go, No. 04-40478, 411 F.3d 597, ___, 2005 cable guideline range.
U.S. App. LEXIS 10432, at *5 (5th Cir. June
7, 2005) (per curiam) (referring to Ducan Fan- This is similar to the situation we treated in
fan, the second defendant in the consolidated United States v. Monreal-Monreal, No. 04-
opinion in Booker). See United States v. Ville- 40547, 2005 U.S. App. LEXIS 11496 (5th
gas, 404 F.3d 355, 364 (5th Cir. 2005) (per Cir. June 16, 2005) (per curiam) (unpub-
curiam) (discussing the difference between lished). There, as here, the court sentenced
Booker and Fanfan error). the defendant at the low end of the applicable
range and stated that it had no latitude to
The third prong of the plain-error test re- reduce the sentence further. We held that
quires, under Mares, that “the defendant rather “[b]ecause [defendant] can point to a state-
than the government bears the burden of per- ment from the district court demonstrating a
suasion with respect to prejudice.” Mares, likelihood that he would have received a lesser
402 F.3d at 521 (citing United States v. sentence under an advisory application of the
Olano, 507 U.S. 725, 734 (1993)). To show sentencing guidelines, he has shown that the
that his substantial rights are affected, Cruz error affected his substantial rights and has met
would have to “point[] to . . . evidence in the the third prong of the plain error test.” Id. at
record suggesting that the district court would *4-*5 (citing United States v. Pennell, 409
have imposed a lesser sentence under an advis- F.3d 240, 245-46 (5th Cir. 2005)). “Because
ory guidelines system.” Taylor, 409 F.3d at [defendant] has shown the likelihood that the
677 (citations omitted). In other words, “the error in this case increased his sentence, he has
pertinent question is whether [the defendant] shown that the error seriously affects the
demonstrat ed that the sentencing fairness, integrity, or public reputation of
judgeSSsentencing under an advisory scheme judicial proceedings.” Id. at *5 (citing Pen-
rather than a mandatory oneSSwould have nell, 409 F.3d at 246).
reached a significantly different result.” Mar-
es, 402 F.3d at 521. To meet this standard, Accordingly, the judgment of sentence is
the proponent of the error must demonstrate a VACATED and REMANDED for resentenc-
probability “sufficient to undermine confidence ing. The judgment of conviction is
in the outcome.” United States v. Dominguez AFFIRMED for the reasons expressed in our
Benitez, 542 U.S. 74, __, 124 S. Ct. 2333, initial opinion.2
2340 (2004).
2
Cruz has satisfied that standard. He made We need not consider Cruz’s remaining ar-
guments, which are (1) that due process forbids the
a motion for downward departure, to which
retroactive application of Booker’s remedial hold-
the court responded, “To depart I would have
ing to him, see United States v. Scroggins, No. 03-
to deviate from the impositions . . . of the 30481, 411 F.3d 572, ___, 2005 U.S. LEXIS
Sentencing Guideline criminal history range.” (continued...)
4
2
(...continued)
10377, at *9-*11 (5th Cir. June 6, 2005); and (2)
that Booker error is structural or presumed prejudi-
cial, see Martinez-Lugo, 411 F.3d at ___, 2005
U.S. App. LEXIS 10432, at *7-*8; United States
v. Malveaux, 411 F.3d 558, ___ n.9, 2005 U.S.
App. LEXIS 5960, at *4 n.9 (5th Cir. Apr. 11,
2005). He recognizes, in any event, that these
issues are foreclosed by the cases cited, and he
raises them only to preserve them for possible
further review.
5