United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 23, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40246
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MUNOZ-HERNANDEZ,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1280-ALL
______________________
Before HIGGINBOTHAM and DEMOSS, Circuit Judges.*
PER CURIAM:**
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Jesus Munoz-Hernandez contends that his Sixth Amendment right
to a jury trial was violated when he was sentenced based on facts
not found by a jury, citing United States v. Booker.1 We conclude
that his sentence must be affirmed.
*
This appeal is being decided by a quorum due to the passing of Judge
Reynaldo Garza. 28 U.S.C. § 46(d).
**
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should not be published and is not precedent except under the limited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.
1
125 S. Ct. 738 (2005).
Munoz-Hernandez was convicted by a jury for possessing with
intent to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The PSR
indicated that Munoz-Hernandez was responsible for 33.25 kilograms
of cocaine, fixing his base offense level at thirty-four and
producing a Guidelines imprisonment range of 151-188 months.
Consistent with the probation officer’s recommendation that Munoz-
Hernandez be sentenced at the “low end” of the range, the district
court imposed a sentence of 151 months’ imprisonment. We affirmed
in an unpublished opinion.2 Following its decision in Booker, the
Court vacated our judgment and remanded for further consideration
in light of Booker.3
Munoz-Hernandez concedes that he failed to preserve error with
respect to his Booker issue. Thus, our review is for plain error
only.4 “We find plain error when: (1) there was an error; (2) the
error was clear and obvious; and (3) the error affected the
defendant’s substantial rights.”5 If all three of these conditions
are met, we may exercise our discretion to notice the error if “the
2
United States v. Munoz-Hernandez, 94 Fed. Appx. 243 (5th Cir. Apr. 19,
2004) (unpublished).
3
Munoz-Hernandez v. United States, 125 S. Ct. 999 (Mar. 1, 2005).
4
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). As part
of this conclusion, we observe that Munoz-Hernandez did not “repeatedly object”
to the district court’s determination of drug quantity on the ground that the
figure had not be proven at trial, nor did he “consistently urge” that the
district court confine its determination to the amount alleged in the indictment.
See United States v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).
5
United States v. Infante, 404 F.3d 376, 394 (5th Cir. 2005) (citing
United States v. Olano, 507 U.S. 725, 732-37 (1993)).
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”6
Munoz-Hernandez satisfies the first two prongs of the plain
error test because the district court committed Sixth Amendment
Booker error and because that error is now plain after Booker.7
With respect to prejudice, Munoz-Hernandez argues that three facts
indicate that the district court would likely have assessed a
different sentence under an advisory regime: (1) his sentence was
placed at the very bottom of the Guidelines range; (2) he was a
first-time offender; and (3) his conviction resulted in deportation
proceedings being initiated against him. These facts are
insufficient to establish, “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,” Munoz-Hernandez would have received a lesser
sentence.8
Having reconsidered in light of Booker, we REINSTATE our
decision affirming Munoz-Hernandez’s conviction, and AFFIRM his
sentence.
6
United States v. Cotton, 535 U.S. 625, 631 (2002).
7
See Infante, 404 F.3d at 394; Mares, 402 F.3d at 520.
8
Infante, 404 F.3d at 395; compare United States v. Bringier, 405 F.3d
310, 317 n.4 (5th CIr. 2005) (“[T]he fact that the sentencing judge imposed the
minimum sentence under the Guideline range . . . alone is no indication that the
judge would have reached a different conclusion under an advisory scheme.”), with
United States v. Pennell, 409 F.3d 240, 245-46 (5th Cir. 2005) (sentence placed
at the bottom of the Guidelines range plus a statement by the district court
that, “from many standpoints of fairness and justice,” it would be better to
sentence outside the Guidelines range sufficient to establish prejudice).