United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-20503
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE ENRIQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-431-2
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Enrique Enriquez appeals his sentence following his guilty-
plea conviction of conspiracy to transport and harbor illegal
aliens for a fee and aiding and abetting the transportation of an
illegal alien for commercial advantage and private financial gain
within the United States. Enriquez argues that the district
court plainly erred in applying the Sentencing Guidelines in a
mandatory manner. He contends that, because this error was
structural in nature, prejudice should be presumed and we should
*
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this opinion should not be published and is not precedent except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. 04-20503
-2-
exercise our discretion to reverse the sentence. He also
challenges that review is for plain error. However, he concedes
that his arguments are foreclosed by our decision in United
States v. Mares, 402 F.3d 511, 522 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005) (No. 04-9517), and asserts that he is
raising the arguments to preserve them for review in the United
States Supreme Court.
Here, the district court erred by imposing a sentence
pursuant to a mandatory application of the Sentencing Guidelines.
See United States v. Booker, 125 S. Ct. 738, 768 (2005); see also
Mares, 402 F.3d at 520-21 & n.9. However, Enriquez cannot
establish that this error affected his substantial rights because
the record does not establish that the sentencing court would
have imposed a different sentence had it been proceeding under an
advisory guideline scheme. See United States v.
Valenzuela-Quevedo, 407 F.3d 728, 733-34 (5th Cir. 2005),
petition for cert. filed (July 25, 2005) (No. 05-5556). The
district court’s judgment is AFFIRMED.