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. 04-40623
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ARMANDO CASTILLO-BUSTAMANTE, also known as Jorge Garcia
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-23-ALL
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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 judgment of conviction and sentence
of Armando Castillo-Bustamante (Castillo). United States v.
Castillo-Bustamante, No. 04-40623 (5th Cir. Dec. 17, 2004)
(unpublished). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005). See De La Cruz-Gonzalez v. United States, 125
*
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this opinion should not be published and is not precedent except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. 04-40623
-2-
S. Ct. 1995 (2005). We requested and received supplemental
letter briefs addressing the impact of Booker.
Castillo argues that he is entitled to resentencing because
the district court sentenced him under a mandatory application of
the United States Sentencing Guidelines prohibited by Booker.
However, he identifies “no evidence in the record suggesting that
the district court would have imposed a lesser sentence under an
advisory guidelines system.” United States v. Taylor, 409 F.3d
675, 677 (5th Cir. 2005). Castillo’s reliance on an ambiguous
remark made by the sentencing judge is misplaced. See United
States v. Creech, 408 F.3d 264, 271 (5th Cir. 2005) (court’s mere
expression of sympathy for the defendant is insufficient).
Thus Castillo cannot make the necessary showing of plain
error that is required by our precedent. Furthermore, he
correctly acknowledges that this court has rejected the argument
that a Booker error is a structural error or that such error is
presumed to be prejudicial. See Mares, 402 F.3d at 520-22; see
also United States v. Malveaux, F.3d , No. 03-41618, 2005
WL 1320362, *1 n.9 (5th Cir. Apr. 11, 2005).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Castillo’s conviction
and sentence.
AFFIRMED.