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. 04-40576
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANTONIO RAMOS-LUCAS
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-58-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 judgment of conviction and sentence
of Antonio Ramos-Lucas (“Ramos”). Unites States v. Ramos-Lucas,
No. 04-40576 (5th Cir. Jan. 12, 2005) (unpublished). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). See De La Cruz-
Gonzalez 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this opinion should not be published and is not precedent except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. 04-40576
-2-
and received supplemental letter briefs addressing the impact of
Booker.
Ramos argues that the district court sentenced him under a
mandatory application of the United States Sentencing Guidelines
now prohibited by Booker. However, he identifies “no evidence in
the record suggesting that the district court would have imposed
a lesser sentence under an advisory guidelines system.” United
States v. Taylor, 409 F.3d 675, 677 (5th Cir. 2005).
Ramos concedes that he cannot make the necessary showing of
plain error that is required by our precedent. Furthermore, he
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. Mares, 402 F.3d
511, 520-22 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005) (No. 04-9517); see also United States v. Malveaux, 411 F.3d
558, 561 n.9 (5th Cir. 2005), petition for cert. filed (July 11,
2005) (No. 05-5297). He desires to preserve this argument for
further review.
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 Ramos’s conviction and
sentence.
AFFIRMED.