United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-40409
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR VASQUEZ-ALEJOS, also known as Andre Maya-Galvan,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-898-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:*
This court affirmed the sentence of Julio Cesar Vasquez-
Alejos (Vasquez). United States v. Vasquez-Alejos, 115 Fed.
Appx. 252 (5th Cir. 2004) (per curiam). The Supreme Court
vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See Vasquez-
Alejos v. United States, 125 S. Ct. 1995 (2005). We requested
*
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this opinion should not be published and is not precedent except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. 04-40409
-2-
and received supplemental letter briefs addressing the impact of
Booker.
Vasquez argues that he is entitled to resentencing because
the district court sentenced him under the mandatory application
of the United States Sentencing Guidelines that was prohibited by
Booker. This is the type of error that was experienced by the
other respondent in Booker, Fanfan. Booker, 125 S. Ct. at
767-68.
In United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005), this court rejected the argument that Vasquez seeks
to preserve for further review, that Fanfan error is structural
and presumptively prejudicial. Instead, Fanfan error is subject
to the plain error analysis set forth in United States v. Mares,
402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517). Martinez-Lugo, 411 F.3d at 600-01. Thus,
because Vasquez raises this issue for the first time on remand
from the Supreme Court, and because he raised an argument related
to Blakely v. Washington, 542 U.S. 296 (2004), in his initial
brief before this court, his argument is reviewable for plain
error. See United States v. Cruz, F.3d , No. 03-40886, 2005
WL 1706518, *2 (5th Cir. July 22, 2005).
Vasquez concedes that the district court did not give any
indication that his sentence would have been lower if the
district court had sentenced him under the post-Booker advisory
regime. Vasquez has therefore failed to establish “with a
No. 04-40409
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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.” United States v. Infante, 404 F.3d 376, 395
(5th Cir. 2005); see United States v. Bringier, 405 F.3d 310, 317
(5th Cir. 2005), petition for cert. filed (July 26, 2005) (No.
05-5535). He has therefore failed to show that the error
affected his substantial rights and has thus failed to establish
plain error. See Martinez-Lugo, 411 F.3d at 600-01.
Vasquez asserts, for the purpose of preserving the issue for
Supreme Court review, that this court’s standard under Mares and
Bringier that the defendant must prove that the error affected
his substantial rights is inconsistent with United States v.
Dominguez Benitez, 542 U.S. 74, ___, 124 S. Ct. 2333, 2340 n.9
(2004).
Because nothing in Booker requires us to change our prior
affirmance in this case, we reinstate our judgment affirming
Vasquez’s sentence.
AFFIRMED.