United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 26, 2005
Charles R. Fulbruge III
Clerk
No. 03-40902
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALENTINE HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B:03-CR-189-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Valentine Hernandez-
Hernandez (Hernandez). See United States v. Hernandez-Hernandez,
87 Fed. Appx. 425 (5th Cir. 2004) (per curiam). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See Newsome v.
United States, 125 S. Ct. 1112 (2005). This court requested 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this opinion should not be published and is not precedent except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.
No. 03-40902
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received supplemental letter briefs addressing the impact of
Booker.
Our original opinion, in which we rejected Hernandez’s
challenge to a condition of supervised release that appeared in
the written judgment but was not orally pronounced by the
district court at sentencing, is reinstated. See United States
v. Hernandez-Hernandez, 87 Fed. Appx. 425 (5th Cir. 2004) (per
curiam). Our original opinion is supplemented with the
following.
Hernandez argues that the district court erred in sentencing
him pursuant to a mandatory application of the sentencing
guidelines. He concedes that he did not object to his sentence
in the district court under Blakely v. Washington, 124 S. Ct.
2531 (2004), or under Booker, and that his failure to make an
objection of that type results in review for plain error.
Under the plain-error standard, the defendant bears the
burden of showing that (1) there is an error, (2) the error is
plain, and (3) the error affects substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If these conditions
are satisfied, this court may exercise its discretion to correct
the error only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. at 736-37
(internal quotation marks and citation omitted).
To satisfy the third prong of the plain error test in light
of Booker, a defendant must demonstrate “with a probability
No. 03-40902
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sufficient to undermine confidence in the outcome, that if the
judge had sentenced him under an advisory sentencing regime
rather than a mandatory one, he would have received a lesser
sentence.” United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005). Absent any indication in the record that the district
court would have imposed a lower sentence, a defendant does not
meet this burden. See United States v. Mares, 402 F.3d 511, 522
(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
Hernandez contends that the error committed by the district
court is structural or presumptively prejudicial. This argument
is foreclosed. See United States v. Martinez-Lugo, 411 F.3d 597,
601 (5th Cir. 2005). Hernandez seeks to preserve this issue for
further review.
Hernandez also argues that his substantial rights were
affected. Hernandez notes that he was sentenced at the low end
of the guideline range, and he renews the argument from his
motion for downward departure regarding the neglect of his
children, contending that the district court alluded to the
veracity of his claims by encouraging him “to report the
situation to Child Protective Services.” Based on these factors,
Hernandez asserts that it is reasonably probable that the
district court would have imposed a lower sentence under a post-
Booker advisory regime.
No. 03-40902
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Here, “there is no indication in the record from the
sentencing judge’s remarks or otherwise that gives us any clue as
to whether she would have reached a different conclusion” as to
Hernandez’s sentence had she been sentencing under an advisory
regime. See Mares, 402 F.3d at 522. Moreover, a sentence at the
bottom of the guideline range is insufficient to demonstrate that
the district court would have imposed a different sentence under
an advisory scheme. See United States v. Bringier, 405 F.3d 310,
317-18 n.4 (5th Cir. 2005), petition for cert. filed (July 26,
2005) (05-5535). Hernandez has therefore failed to meet his
burden of establishing that his substantial rights were affected
under the third prong of the plain error test. See Mares,
402 F.3d at 522.
AFFIRMED.