United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-40805
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE NIEVES-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-103-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:*
We affirmed the judgment of conviction and sentence of
Guadalupe Nieves-Alvarez (“Nieves”). United States v. Nieves-
Alvarez, No. 04-40805 (5th Cir. Dec. 17, 2005)(unpublished).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
*
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this opinion should not be published and is not precedent except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. 04-40805
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requested and received supplemental letter briefs addressing the
impact of Booker.
Nieves argues that his sentence should be vacated because
the district court sentenced him under a mandatory Guidelines
scheme in violation of Booker. He argues that he should not be
required to show plain error because the district court’s error
was “structural” and should be presumed prejudicial.
The district court erred by imposing a sentence pursuant to
a mandatory application of the Sentencing Guidelines. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005),
petition for cert. filed (July 25, 2005) (No. 05-5556); United
States v. Mares, 402 F.3d 511, 520-21 & n.9. (5th Cir. 2005),
petition for cert. filed, (Mar. 31, 2005) (No. 04-9517).
However, Nieves must establish that the error was “sufficient to
undermine confidence in the outcome [of the case].” Valenzuela-
Quevedo, 407 F.3d 728, 733 (5th Cir. 2005) (internal quotation
marks and citations omitted). Nieves cannot make such a showing
because the record does not establish that the sentencing court
would have imposed a different sentence had it been proceeding
under an advisory Guidelines scheme. Although the district court
sentenced Nieves to the lowest end of the Guidelines range, it
did so without comment. In the absence of a showing that his
sentence likely would have been different had the Sentencing
Guidelines been advisory, Nieves cannot establish plain error.
Accordingly, we conclude that nothing in the Supreme Court’s
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Booker decision requires us to change our prior affirmance in
this case. We therefore reinstate our judgment affirming the
defendant’s conviction and sentence.
AFFIRMED.