United States v. Cisneros-Cavazos

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2005

Charles R. Fulbruge III
Clerk
No. 04-40530
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR ALFREDO CISNEROS-CAVAZOS,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-973-ALL
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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:*

This court affirmed the sentence of Cesar Alfredo Cisneros-

Cavazos. United States v. Cisneros-Cavazos, No. 04-40530 (5th

Cir. Dec. 17, 2004) (unpublished). The Supreme Court vacated

this court’s decision and remanded the case for further

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005). See De La Cruz-Gonzales v. United States, 125 S. Ct.

1995 (2005). We requested and received supplemental letter

*
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this opinion should not be published and is not precedent except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. 04-40530
-2-

briefs addressing the impact of Booker. Cisneros argues that he

is entitled to resentencing because the district court sentenced

him under the mandatory application of the United States

Sentencing Guidelines that was prohibited by Booker.

In United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005), this court rejected the argument that Cisneros seeks

to preserve for further review, that Fanfan error is structural

and presumptively prejudicial. Instead, Fanfan error is subject

to the plain error analysis set forth in United States v. Mares,

402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517). Martinez-Lugo, 411 F.3d at 600-01. Thus,

because Cisneros raises this issue for the first time on appeal,

and because he raised an argument related to Blakely v.

Washington, 542 U.S. 296 (2004), in his initial brief before this

court, his argument is reviewable for plain error. See United

States v. Cruz, _ F.3d _, No. 03-40886, 2005 WL 1706518, *2 (5th

Cir. July 22, 2005).

Cisneros concedes that the district court did not give any

indication that his sentence would have been lower if the

district court had sentenced him under the post-Booker advisory

regime. Cisneros has therefore failed 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, he would have received a

lesser sentence.” United States v. Infante, 404 F.3d 376, 395
 No. 04-40530
-3-

(5th Cir. 2005). He has therefore failed to show that the error

affected his substantial rights and has thus failed to establish

plain error. See Martinez-Lugo, 411 F.3d at 600-01.

Because nothing in Booker requires us to change our prior

affirmance in this case, we reinstate our judgment affirming

Cisneros’s sentence.

AFFIRMED.