United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS September 27, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
04-40540
Summary Calendar
UNITED STATES of AMERICA,
Plaintiff-Appellee,
v.
JOHN RAY FLORES,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
The Supreme Court granted Defendant-Appellant Flores’s
petition for writ of certiorari, vacated our previous judgment in
this case, and remanded the case to this Court for further
consideration in light of United States v. Booker, –- U.S. –-, 125
*
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this opinion should not be published and is not precedent except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.
S.Ct. 738 (2005). On direct appeal, Flores raised for the first
time the claims that: the district court’s upward departure was
improper in view of Blakely v. Washington, -- U.S. --, 124 S.Ct.
2531 (2004); and 21 U.S.C. §§ 952 and 960 are unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).
Concluding that those claims were foreclosed by our precedent, we
affirmed Flores’s conviction and sentence. See United States v.
Flores, 122 Fed.Appx. 720 (5th Cir. 2004) (per curiam)
(unpublished).
Flores subsequently filed a petition for writ of certiorari,
requesting relief under Booker. After the Supreme Court remanded
the case, pursuant to our instructions, the parties briefed the
issue of whether Booker impacted Flores’s sentence. We now
reconsider the case in light of Booker and decide to reinstate our
previous judgment affirming Flores’s conviction and sentence.
Relying on Booker, Flores argues that the Sixth Amendment was
violated because his enhanced sentence was based on the district
court’s determination of a fact not found by the jury or admitted
by the defendant. He further argues that the sentencing pursuant
to a mandatory sentencing guidelines system in his case constitutes
Booker error.
Flores admits that because he did not raise a Blakely/Booker
objection in the district court this claim must be reviewed for
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th
2
Cir.), petition for cert. filed, (Mar. 31, 2005) (No. 04-9517).
Under the plain error standard, this Court may correct a
defendant’s sentence only if there is (1) an error; (2) that is
clear and obvious; and (3) that affects the defendant’s substantial
rights. Mares, 402 F.3d at 520. If all three requirements are met,
an appellate court may exercise its discretion to correct a
forfeited error if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
In response to this Court’s question, Flores admits that he
“cannot point to any statement in the record that could support an
inference that the district court would likely impose a lesser
sentence on remand.” Clearly, Flores cannot shoulder his burden of
demonstrating that the result would have likely been different had
the district court sentenced him under the Booker advisory regime.
Mares, 402 F.3d at 522. Flores thus cannot satisfy the third prong
of the plain error test. Id.1 Accordingly, because there is no
plain error, we reinstate our judgment affirming the defendant’s
conviction and sentence.
1
To preserve the issues for further review, Flores argues
that the sentencing error was “structural” and that application of
Booker’s remedy would constitute an ex post facto violation.
However, as acknowledged by Flores, this Court has rejected these
claims. See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th
Cir. 2005) (rejecting claim that sentencing under a mandatory
regime was “structural”); United States v. Scroggins, 411 F.3d 572,
576 (5th Cir. 2005) (rejecting contention that applying the
advisory guidelines would constitute an ex post facto violation).
3
AFFIRMED.
4