United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 5, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40888
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYNALDO QUIROZ-ESCOBEDO,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-123-1
______________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Reynaldo Quiroz-Escobedo pleaded guilty to importation of more
than fifty grams of methamphetamine, in violation of 21 U.S.C. §§
952(a), 960(a)(1), and 960(b)(1)(H). At sentencing, the district
court calculated a Guidelines range of forty-six to fifty-seven
months, and sentenced Quiroz-Escobedo to fifty-seven months’
imprisonment and three years’ supervised release.
*
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should not be published and is not precedent except under the limited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.
On direct appeal, Quiroz-Escobedo challenged only the
constitutionality of the statutes under which he was convicted. We
affirmed both the judgment of conviction and the sentence.1
Quiroz-Escobedo renewed his challenge in a consolidated petition
for writ of certiorari which was denied.2 Following the Supreme
Court’s decision in Blakely v. Washington,3 Quiroz-Escobedo filed
a petition for rehearing. The Court then decided United States. v.
Booker,4 in which it rendered the United States Sentencing
Guidelines purely advisory in nature. Subsequently, the Court
vacated its order denying Quiroz-Escobedo’s petition for writ of
certiorari, granted the writ, vacated our prior judgment and
remanded for further consideration in light of Booker.5
On remand, Quiroz-Escobedo concedes that he did not make a
Blakely or Booker-type objection in the district court.
Accordingly, our review is for plain error only.6 In order to
prevail under plain error review, an appellant must show that (1)
there is an error, (2) the error is plain, and (3) the error
1
United States v. Quiroz-Escobedo, 87 Fed. Appx. 935 (5th Cir. Feb. 18,
2004) (unpublished).
2
Jimenez-Velasco v. United States, 124 S. Ct. 2856 (2004) (mem.).
3
542 U.S. 296 (2004).
4
125 S. Ct. 738 (2005).
5
Jimenez-Velasco v. United States, 125 S. Ct. 1110 (2005) (mem.).
6
See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005).
2
affects substantial rights.7 When all three of these requirements
are met, we will exercise our discretion to correct the error only
if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”8
Quiroz-Escobedo argues that the district court committed plain
error because it sentenced him under the assumption of a mandatory
Guidelines regime. Further, he contends that this error is
structural, or at least presumed prejudical. He candidly admits,
however, that based on the facts in the record, he cannot show
“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.”9
Assuming arguendo that the district court committed plain
error when it sentenced him under a mandatory Guidelines regime,
Quiroz-Escobedo cannot satisfy the third prong of the plain error
standard as his argument that Booker error is structural or
presumed prejudicial is in the teeth of our decision in United
States v. Mares.10 A panel of this court cannot overrule a prior
panel’s decision in the absence of an intervening contrary or
7
See United States v. Olano, 507 U.S. 725, 732 (1993).
8
Id. at 734 (internal quotation marks and citations omitted).
9
United States v. Infante, 404 F.3d 376, 395 (5th Cir. 2005).
10
402 F.3d 511, 520-22 (5th Cir. 2005); see United States v. Malveaux,
411 F.3d 558, 560 n.9 (5th Cir. 2005).
3
superseding decision by this court sitting en banc or by the United
States Supreme Court.11 No such decision overruling Mares exists.
Accordingly, we REINSTATE our prior judgment affirming Quiroz-
Escobedo’s conviction and sentence.
11
See Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).
4