United States v. Rodriguez

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. 04-40687
Conference Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE ALEXANDER ROMERO RODRIGUEZ,also known as Carlos Garcia

Defendant - Appellant

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:02-CR-426-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 previously affirmed the sentence imposed

following Jose Alexander Romero Rodriguez’s resentencing. United

States v. Rodriguez, No. 04-40687 (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(unpublished).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 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this opinion should not be published and is not precedent except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.04-40687
-2-

Rodriguez 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. Rodriguez

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 Rodriguez did not preserve his arguments 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, Rodriguez 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 Rodriguez concedes, he cannot make this showing.

Booker does not affect our prior holding that Almendarez-

Torres v. United States, 523 U.S. 224 (1998), has not been

overruled. Accordingly, the we REINSTATE our prior decision and

judgment affirming the district court.