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. 04-40440
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL LOREDO-PECINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-976-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 conviction and sentence of Gabriel
Loredo-Pecina. United States v. Loredo-Pecina, No. 04-40440 (5th
Cir. Dec. 17, 2004) (unpublished). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). Vences v. United States, 125 S.
Ct. 1991 (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this opinion should not be published and is not precedent except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. 04-40440
-2-
Loredo argues that his sentence is unconstitutional because
he was sentenced pursuant to the mandatory sentencing guidelines
scheme found unconstitutional in Booker. We review for plain
error. United States v. Mares, 402 F.3d 511, 520-22 (5th Cir.
2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517);
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
Loredo concedes that he cannot establish plain error because
the record does not indicate that the district court would have
reached a significantly different result under an advisory
guidelines scheme. See Mares, 402 F.3d at 521; Valenzuela-
Quevedo, 407 F.3d at 733-34. Although his sentence was imposed
at the low end of the guidelines range, this fact is not
sufficient to conclude that the district court would have reached
a different result under an advisory guidelines scheme. See
United States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005),
petition for cert. filed (July 26, 2005) (No. 05-5535). This
court has also rejected Loredo’s argument that an error in the
imposition of a sentence under the mandatory guidelines scheme is
a structural error and that prejudice should be presumed. United
States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Loredo’s conviction
and sentence. AFFIRMED.