United States v. Fernandez-Rodriguez

United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FILED FOR THE FIFTH CIRCUIT August 4, 2005 Charles R. Fulbruge III No. 04-10518 Clerk UNITED STATES OF AMERICA Plaintiff - Appellee v. ROBERTO FERNANDEZ-RODRIGUEZ Defendant - Appellant -------------------- Appeal from the United States District Court for the Northern District of Texas, Dallas -------------------- ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* The Supreme Court vacated the sentence in this case and remanded the case to this Court to reconsider in light of United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). Subsequently, we requested letter briefs from the parties with respect to Booker issues. Having reviewed the parties’ letter briefs, we affirm the judgment of the district court. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-10518 -2- Appellant’s Booker claim is foreclosed by the waiver of an appeal provision in his plea agreement. As conceded in Appellant’s letter brief, this Court’s precedents would not recognize an infirmity in the waiver even after Booker. See United States v. Cortez, ___ F.3d ___, No. 04-10152, 2005 WL 1404944 (5th Cir. June 16, 2005). Moreover, even if waiver of an appeal provision would not foreclose consideration under this Court’s precedents, Appellant’s Blakely/now-Booker claim was raised for the first time on direct appeal. If addressed, that claim would be reviewed for plain error, and Appellant has failed to show that the district court would have imposed a lesser sentence under an advisory guidelines system. Thus, the error, while clear and obvious, has not been shown to affect Appellant’s substantive rights. See United States v. Dominguez Benitez, 542 U.S. 74, ___, 124 S. Ct. 2333, 2339 (2004). Accordingly, for the foregoing reasons, we AFFIRM the judgment of the district court.