United States v. Guerra

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 23, 2005

Charles R. Fulbruge III
Clerk
No. 03-20490
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIX ALFONSO GUERRA,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-593-1

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:*

Felix Alfonso Guerra pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The PSR recommended a base offense level of 20 and a

four-level enhancement for Guerra’s possession of a firearm “in

connection with another felony offense, to wit: possession with he

intent to deliver cocaine.” With a total offense level of 24, 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opinion should not be published and is not precedent except under the limited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.
a criminal history of VI, the resulting guidelines imprisonment

range was 100-125 months. The district court sentenced Guerra to

the statutory maximum of 120 months. We affirmed. See United

States v. Guerra, 87 Fed. Appx. 428 (5th Cir. Feb. 18, 2004). On

January 24, 2005, the Supreme Court vacated our judgment and

remanded to us for further consideration in light of United States

v. Booker, 125 S. Ct. 738 (2005). See Criston v. United States,

125 S. Ct. 1112 (2005) (consolidated petition including Guerra).

Guerra now contends that his sentence runs afoul of Booker.

As Guerra acknowledges, he did not raise a Booker-type issue in the

district court and, thus, our review is for plain error. United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for

cert. filed, No. 04-9517 (U.S. Mar. 31, 2005). In order to

establish plain error, Guerra must show: (1) error, (2) that is

clear and obvious, and (3) that affects substantial rights. Mares,

402 F.3d at 520; United States v. Infante, 404 F.3d 376, 394 (5th

Cir. 2005). “‘If all three conditions are met an appellate court

may then exercise its discretion to notice a forfeited error but

only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’” Mares, 402 F.3d at

520 (quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).

Guerra further acknowledges that, under Mares, his claim fails

at the third step of the plain error analysis because he has not

shown that the error affected his substantial rights. There is no

indication in the record that the district court would have imposed

2
a lower sentence if the guidelines had been advisory. See Infante,

404 F.3d at 394-95. Guerra has not carried his “burden of

demonstrating that the result would have likely been different had

the judge been sentencing under the Booker advisory regime rather

than the pre-Booker mandatory regime.” Mares, 402 F.3d at 522

(emphasis added). Guerra pursues this appeal only to preserve

issues for further review.

We reinstate our prior opinion affirming Guerra’s conviction

and sentence. AFFIRMED.