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. 03-20664
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARINO LOUIS GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-664-1
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
PER CURIAM:*
Marino Louis Gonzalez pleaded guilty to possession with intent
to distribute more than one kilogram of heroin, in violation of 21
U.S.C. § 841, and importation of more than one kilogram of heroin,
in violation of 21 U.S.C. §§ 952 and 960. The district court,
finding the applicable Guidelines imprisonment range to be 70-87
*
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opinion should not be published and is not precedent except under the limited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.
months, sentenced Gonzalez to 70 months of imprisonment and five
years of supervised release.
On appeal, Gonzalez challenged only the constitutionality of
the statutes under which he had been convicted. On February 18,
2004, we rejected that challenge and affirmed the conviction and
sentence. See United States v. Gonzalez, 88 Fed. Appx. 779 (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
Jimenez-Velasco v. United States, 125 S. Ct. 1110 (2005)
(consolidated petition including Gonzalez).
Gonzalez now contends that his sentence runs afoul of Booker.
As Gonzalez 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, Gonzalez 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)).
2
Gonzalez’s claim fails at the third step of the plain error
analysis because he has not shown that the error affected his
substantial rights. Although the district court selected a
sentence at the bottom end of the Guidelines imprisonment range,
there is no indication in the record that the district court would
have imposed a lower sentence if the guidelines had been advisory.
See Infante, 404 F.3d at 394-95; cf. United States v. Pennell, 409
F.3d 240, 246 (5th Cir. 2005) (third prong met where district court
sentenced defendant to low end of range and made comments
indicating that it would have imposed a lower sentence had it not
been constrained). He 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); see also id. at 521 (“[T]he pertinent question is whether
[Appellant] demonstrated that the sentencing judge--sentencing
under an advisory scheme rather than a mandatory one--would have
reached a significantly different result.”). As Gonzalez has not
satisfied the third prong of the plain error test, he is not
entitled to resentencing.
We reinstate our prior opinion affirming Gonzalez’s conviction
and sentence is affirmed. AFFIRMED.
3