United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-40389
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EMERITO ZELAYA-VASQUEZ
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-328-1
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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 previously affirmed Emerito Zelaya-Vasquez’s (Zelaya)
sentence. United States v. Zelaya-Vasquez, No. 04-40389 (5th
Cir. Dec. 17, 2004). The Supreme Court has vacated and remanded
for further consideration in light of United States v. Booker,
125 S. Ct. 738 (2005). We requested and received supplemental
letter briefs addressing the impact of Booker.
*
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this opinion should not be published and is not precedent except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. 04-40389
-2-
Zelaya argues that the district court erred by sentencing
him under a mandatory guidelines scheme. He contends that the
district court’s error is not subject to plain error review
because it is structural. He also asserts, based on the nature
of the error, that prejudice should be presumed. Zelaya concedes
that his structural error and presumed prejudice arguments are
foreclosed and raises them simply to preserve further review.
See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.
2005), petition for cert. filed (July 11, 2005) (No. 05-5297).
Because Zelaya did not challenge the mandatory application
of the sentencing guidelines before the district court, plain
error review applies. See United States v. Mares, 402 F.3d 511,
520-21 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517). This court may correct forfeited errors only when
the appellant shows the following factors: (1) there is an
error, (2) that is clear or obvious, and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 731-37 (1993)). If these factors are established,
the decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 735-36.
No. 04-40389
-3-
To establish plain error under Mares, Zelaya must
demonstrate that the district court would have reached a
significantly different result had he been sentenced under
advisory guidelines. See Mares, 402 F.3d at 521. As Zelaya
concedes, he cannot make this showing.
Booker does not affect our prior holding on appeal that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), has not
been overruled. Accordingly, the judgment of the district court
is AFFIRMED.