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. 04-40272
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRISTOBAL SANCHEZ-PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-22-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
On December 17, 2004, in an unpublished opinion, this court
affirmed the sentence of Cristobal Sanchez-Pena (“Sanchez”).
United States v. Sanchez-Pena, 115 Fed. Appx. 710 (5th Cir.
2004). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). Sanchez-Pena v. United States, 125 S. Ct. 1953 (2005).
We requested and received supplemental letter briefs addressing
the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 04-40272
-2-
Sanchez contends that the district court illegally sentenced
him pursuant to a mandatory Sentencing Guidelines regime, in
violation of Booker. He concedes that such argument is raised
for the first time and is reviewable for plain error only. See
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
Sentencing a defendant pursuant to a mandatory guidelines scheme,
standing alone, constitutes “Fanfan” error, and such an error is
“plain.” See Booker, 125 S. Ct. at 750, 768-69 (addressing
preserved challenge in companion case); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).
To satisfy the third prong of the plain-error test, Sanchez
must show that his “substantial rights” were affected. See
Valenzuela-Quevedo, 407 F.3d at 732. “The pertinent question is
whether [the appellant] demonstrated that the sentencing judge
-–sentencing under an advisory scheme rather than a mandatory
one-–would have reached a significantly different result.”
Mares, 402 F.3d at 521. This question requires us to assess
whether “there is [an] indication in the record from the
sentencing judge’s remarks or otherwise that gives us any clue as
to whether [ ]he would have reached a different conclusion” if
sentencing under an advisory scheme. Id. at 522. That the
district court sentenced Sanchez at the bottom of his 33-to-41-
month guideline imprisonment range, standing alone, is no
indication that the district court would have reached a different
No. 04-40272
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result under an advisory guidelines regime. United States v.
Bringier, 405 F.3d 310, 317-18 n.4 (5th Cir. 2005). To the
extent that Sanchez contends that application of the mandatory
Guidelines regime is a “structural” error that is not susceptible
to a plain-error analysis, or that he alternatively contends that
plain-error prejudice should be presumed, this court recently
rejected such arguments. United States v. Martinez-Lugo, 411
F.3d 597, 611 (5th Cir. 2005).
AFFIRMED.