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. 04-40678
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE ANTONIO GARCIA
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-953-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 Jose
Antonio Garcia. United States v. Garcia, No. 04-40678 (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Dec. 17, 2004) (unpublished).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). We requested and received
supplemental letter briefs addressing Booker’s impact.
*
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this opinion should not be published and is not precedent except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. 04-40678
-2-
Garcia argues that the district court erred by sentencing
him under a mandatory guidelines scheme. He contends that the
district court’s error is not subject to plain error review
because it is structural. He also asserts, based on the nature
of the error, that prejudice should be presumed. Garcia concedes
that his structural error and presumed prejudice arguments are
foreclosed and raises them simply to preserve further review.
See United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.
2005), petition for cert. filed (July 11, 2005) (No. 05-5297).
Because Garcia did not preserve this issue before the
district court, plain error review applies. See United States v.
Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). To establish plain error
under Mares, Garcia must demonstrate that the district court
would have reached a significantly different result had he been
sentenced under advisory guidelines. See Mares, 402 F.3d at 521.
As Garcia concedes, he cannot make this showing.
Booker does not affect our prior holding on appeal that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), has not
been overruled. Accordingly, that portion of our prior decision
is reinstated, and the district court’s judgment is AFFIRMED.