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. 04-41658
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ANGEL HERRERA-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-391-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Angel Herrera-Torres appeals the sentence imposed
following his guilty-plea conviction for aiding and abetting the
possession of more than 50 kilograms (approximately 74.09
kilograms) of marijuana with intent to distribute in violation of
21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2. Herrera-Torres argues
that the district court erred in imposing his sentence under the
then mandatory United States Sentencing Guidelines that were held
unconstitutional in United States v. Booker, 125 S. Ct. 738
(2005).
*
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this opinion should not be published and is not precedent except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. 04-41658
-2-
We review for plain error. See United States v. Mares, 402
F.3d 511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517). The district court’s application of the
guidelines in their mandatory form constituted error that is
plain. See United States v. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir. 2005), petition for cert. filed (July 25, 2005)
(No. 05-5556). Herrera-Torres concedes that he cannot meet the
third prong of plain-error analysis as a review of the record
gives no indication that the judge would have sentenced him any
differently had he known the guidelines were only advisory. See
Mares, 402 F.3d at 522. Therefore, Herrera-Torres has not shown
that the district court’s imposition of his sentence constituted
reversible plain error. See id. at 520-22.
This court has rejected the argument that a Booker error or
the application of the then mandatory guidelines is a structural
error or is presumptively prejudicial. Mares, 402 F.3d at 520;
see also United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th
Cir. 2005)(same), petition for cert. filed (July 11, 2005) (No.
05-5297). Therefore, Herrera-Torres’s argument that the plain
error standard does not apply is foreclosed.
AFFIRMED.