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. 04-40612
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VLADIMIR HERNANDEZ-GONZALEZ,
also known as Demecio Infante,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-1000-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:*
We affirmed the judgment of conviction and sentence of Jose
Vladimir Hernandez-Gonzalez. United States v. Hernandez-
Gonzalez, No. 04-40612 (5th Cir. Jan. 17, 2005)(unpublished).
The Supreme Court vacated and remanded for further consideration
in light of United States v. Booker, 125 S. Ct. 738 (2005). See
de la Cruz-Gonzalez v. United States, 125 S. Ct. 1995 (2005). We
*
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this opinion should not be published and is not precedent except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. 04-40612
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requested and received supplemental letter briefs addressing the
impact of Booker.
Hernandez-Gonzalez argues that his sentence should be
vacated because the district court sentenced him under mandatory
guidelines in violation of Booker. He argues that he should not
be required to show plain error because the district court’s
error was “structural.” He also argues that even under plain-
error review his sentence should be vacated.
Here, the district court erred by imposing a sentence
pursuant to a mandatory application of the sentencing guidelines.
See Booker, 125 S. Ct. at 768; see also United States v. Mares,
402 F.3d 511, 520-21 & n.9. (5th Cir. 2005), petition for cert.
filed, (Mar. 31, 2005) (No. 04-9517). However, Hernandez-
Gonzalez must establish that the error was “sufficient to
undermine confidence in the outcome [of the case].” United
States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005)
(internal quotation marks and citations omitted). Hernandez-
Gonzalez cannot make such a showing 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. Although the district court sentenced
Hernandez-Gonzalez to the lowest end of the guideline range, it
did so without comment. In the absence of a showing that his
sentence likely would have been different had the Sentencing
Guidelines been advisory, Hernandez-Gonzalez cannot establish
No. 04-40612
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plain error, and his Booker argument fails. The judgment of the
district court is AFFIRMED.