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. 04-40446
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JAVIER GARCIA-VARGAS
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-412-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Javier Garcia-Vargas.
See United States v. Garcia-Vargas, No. 04-40446, 115 Fed. Appx.
288 (5th Cir. Dec. 17, 2004). The Supreme Court 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this opinion should not be published and is not precedent except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. 04-40446
-2-
Garcia contends that the district court’s application of a
sentencing guidelines enhancement based on the court’s finding
that Garcia’s unlawful weapons possession occurred in connection
with felony possession of marijuana violated the Sixth Amendment.
He concedes that such argument is raised for the first time on
appeal and is reviewable for plain error only. See United States
v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for
cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).
As Garcia admits, the district court made no statements
indicating that it would have imposed a lower sentence under an
advisory guidelines regime. Accordingly, although the district
court’s enhancement of Garcia’s sentence constitutes error that
is plain, i.e., obvious, Garcia cannot demonstrate that the error
affected his substantial rights. See id. at 521-22.
Garcia correctly acknowledges that this court has rejected
the argument that a Booker error is a structural error or that
such error is presumed to be prejudicial. See United States v.
Martinez-Lugo, 411 F.3d 597, 611 (5th Cir. 2005). He likewise
concedes that our precedent forecloses his contention that
application of Booker’s remedial opinion to him violates the Ex
Post Facto Clause. See United States v. Scroggins, 411 F.3d 572,
577 (5th Cir. 2005). He raises these arguments to preserve them
for further review. Garcia’s reliance on the plain error
analysis set forth in United States v. Dazey, 403 F.3d 1147 (10th
Cir. 2005), is unavailing in light of Mares.
No. 04-40446
-3-
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Garcia’s conviction and
sentence.
AFFIRMED.