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. 04-40541
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GABRIEL MARTINEZ - ESPARZA
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-968-1
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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:*
This court affirmed the conviction and sentence of Gabriel
Martinez-Esparza. United States v. Martinez-Esparza, 117 Fed.
Appx. 984, 984-85 (5th Cir. 2004) (unpublished). The Supreme
Court has vacated and remanded for further consideration in light
of United States v. Booker, 125 S. Ct. 738 (2005). We now
REINSTATE our earlier opinion and judgment affirming the district
court’s final judgment. However, we substitute the following
*
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this opinion should not be published and is not precedent except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. 04-40541
-2-
revised analysis for the portion of our opinion addressing
Martinez-Esparza’s challenge to his sentence based on Blakely v.
Washington, 542 U.S. 296 (2004); Ring v. Arizona, 536 U.S. 584
(2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
In his original brief, Martinez-Esparza argued that his
sentence was unconstitutional because the district court
sentenced him based on facts that were not charged in the
indictment, admitted by him, or proven to a jury beyond a
reasonable doubt. In a supplemental brief, Martinez-Esparza
reiterates the arguments in light of Booker. He also argues that
the district court erred by sentencing him under the mandatory
Sentencing Guidelines scheme held unconstitutional in Booker.
As Martinez-Esparza raises his arguments for the first time
on appeal, the district court’s actions are reviewed 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); United States v. Martinez-Lugo, 411 F.3d 597, 600
(5th Cir. 2005). Martinez-Esparza has satisfied the first two
prongs of the plain error analysis by showing that the district
court committed error that was plain. See Mares, 402 F.3d at
520-21; Martinez-Lugo, 411 F.3d at 600. As Martinez-Esparza
acknowledges, however, he has not satisfied the third prong of
the plain error analysis by showing that the error affected his
substantial rights. See Mares, 402 F.3d at 521-22;
Martinez-Lugo, 411 F.3d at 600-01; United States v. Bringier, 405
No. 04-40541
-3-
F.3d 310, 318 & n.4 (5th Cir. 2005), petition for cert. filed
(July 26, 2005) (No. 05-5535).
Martinez-Esparza 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. United States
v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for
cert. filed (July 11, 2005) (No. 05-5297); Martinez-Lugo, 411
F.3d at 601. 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 solely to preserve them for further review.
Nothing in the Supreme Court’s Booker decision requires us
to change our prior affirmance in this case.
PRIOR JUDGMENT REINSTATED.