United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-40434
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ANDRES SAUZO-IZAGUIRRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1682-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Carlos Andres Sauzo-
Izaguirre (“Sauzo”). See United States v. Sauzo-Izaguirre,
115 Fed. Appx. 253 (5th Cir. 2004) (per curiam). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See Vences v.
United States, 125 S. Ct. 1991 (2005). This court requested and
*
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this opinion should not be published and is not precedent except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. 04-40434
-2-
received supplemental letter briefs addressing the impact of
Booker.
Sauzo argues that the district court erred in sentencing him
pursuant to a mandatory application of the sentencing guidelines.
He concedes that he did not object to his sentence in the
district court under Blakely v. Washington, 124 S. Ct. 2531
(2004), or under Booker, and that his failure to make an
objection of that type results in review for plain error.
Under the plain-error standard, the defendant bears the
burden of showing that (1) there is an error, (2) the error is
plain, and (3) the error affects substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If these conditions
are satisfied, this court may exercise its discretion to correct
the error only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. at 736-37
(internal quotation marks and citation omitted).
To satisfy the third prong of the plain error test in light
of Booker, a defendant must demonstrate “with a probability
sufficient to undermine confidence in the outcome, that if the
judge had sentenced him under an advisory sentencing regime
rather than a mandatory one, he would have received a lesser
sentence.” United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005). Absent any indication in the record that the district
court would have imposed a lower sentence, a defendant does not
meet this burden. See United States v. Mares, 402 F.3d 511, 522
No. 04-40434
-3-
(5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005)
(No. 04-9517).
Sauzo contends that the error committed by the district
court is structural or presumptively prejudicial, but he concedes
that this argument is foreclosed. See United States v. Malveaux,
___ F.3d ___, No. 03-41618, 2005 WL 1320362, *1 n.9 (5th Cir.
Apr. 11, 2005). Sauzo also argues that his substantial rights
were affected. He contends that the district court was
sympathetic toward him because of his medical problems, and he
notes that the district court considered his condition in
determining his sentence. He argues that it is reasonably
probable that the district court would have imposed a lower
sentence under a post-Booker advisory regime.
Sympathy toward the defendant “is not indicative of a
judge’s desire to sentence differently under a non-mandatory
Guidelines regime.” United States v. Creech, 408 F.3d 264, 272
(5th Cir. 2005). Here, “there is no indication in the record
from the sentencing judge’s remarks or otherwise that gives us
any clue as to whether []he would have reached a different
conclusion” as to Sauzo’s sentence had he been sentencing under
an advisory regime. See Mares, 402 F.3d at 522. Accordingly,
Sauzo has not met his burden of establishing that his substantial
rights were affected under the third prong of the plain error
test. See id.
The judgment of the district court is AFFIRMED.