United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-40794
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE REYES ESPINOZA-CORTEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-42-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 sentence of Jose Reyes Espinoza-
Cortez. United States v. Espinoza-Cortez, No. 04-40794 (5th Cir.
Dec. 17, 2004). The Supreme Court vacated and remanded for
further consideration in light of United States v. Booker, 125
S. Ct. 738 (2005).
Espinoza-Cortez argues that Booker dictates that his
sentence under the formerly mandatory guideline sentencing scheme
is a presumptively prejudicial structural error. He acknowledges
*
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this opinion should not be published and is not precedent except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. 04-40794
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that the argument is foreclosed by this court’s case law, but he
raises it to preserve it for further review.
Because Espinoza-Cortez did not challenge his sentence in
the district court, we review the sentence for plain error.
Under the plain error standard, the appellant must show that
(1) there is an error (2) that is clear or obvious and (3) that
affects his substantial rights. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005)(No. 04-9517). If these factors are established, the
decision to correct the forfeited error is within our discretion,
which we will not exercise unless the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings. Id.
Espinoza-Cortez’s sentence was enhanced based on a prior
conviction for burglary of a habitation; however, Booker does not
apply to such enhancements. Booker, 125 S. Ct. at 756. Although
the imposition of a sentence under mandatory sentencing
guidelines constitutes plain error under Booker,** we agree with
Espinoza-Cortez’s concession that he cannot establish that his
sentence at the mid-range of the guidelines affects his
substantial rights. See United States v. Bringier, 405 F.3d 310,
317-18 & n.4 (5th Cir. 2005), petition for cert. filed (Jul. 26,
2005)(No. 05-5535).
**
See United States v. Valenzuela-Quevedo, 407 F.3d 728,
733 (5th Cir. 2005), petition for cert. filed (Jul. 25, 2005)(No.
05-5556).
No. 04-40794
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Accordingly, we conclude that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in
this case. We therefore reinstate our judgment affirming his
conviction and sentence.
AFFIRMED.