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. 04-41577
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO RIVERA-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-503-1
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Roberto Rivera-Mendez appeals his guilty-plea conviction and
sentence for illegal reentry following deportation. Rivera-
Mendez contends that his sentence is invalid in light of United
States v. Booker, 125 S. Ct. 738 (2005), because the sentencing
judge applied the sentencing guidelines as if they were
mandatory. We review for plain error. United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition
for cert. filed (July 25, 2005) (No. 05-5556); United States v.
*
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this opinion should not be published and is not precedent except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. 04-41577
-2-
Malveaux, 411 F.3d 588, 560 (5th Cir. 2005), petition for cert.
filed (July 11, 2005) (No. 05-5297). To prevail under a plain
error analysis, Rivera-Mendez must show an error that is plain
and that affects his substantial rights. United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005)(No. 04-9517).
To demonstrate that the plain error affected his substantial
rights, Rivera-Mendez has the burden of showing that the error
“affected the outcome of the district court proceedings.”
Valenzuela-Quevedo, 407 F.3d at 733 (internal quotations and
citation omitted). He must demonstrate “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.
As Rivera-Mendez concedes, he cannot show prejudice as there
is nothing in the record to suggest that his sentence would have
been any less had the court applied the sentencing guidelines as
advisory rather than mandatory. See Valenzuela-Quevedo, 407 F.3d
at 733-34. He thus fails to establish prejudice to his
substantial rights. The judgment of the district court is
AFFIRMED.