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opinion should not be published and is not precedent except under the limited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
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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.
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