United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 7, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10068
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RIGOBERTO GRIJALVA-LOPEZ, also known as MARCOS VENTURA-LOPEZ,
also known as JESUS GUARDADO-SANCHEZ, also known as MARIO
ALBERTO, also known as CARLOS ALBERTO, also known as JESUS GOMEZ-
SANCHEZ, also known as MARCUS VENTURA-LOPEZ
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS and BARKSDALE, Circuit Judges.*
PER CURIAM:
In our previous opinion in this case, we affirmed Defendant-
Appellant’s conviction and sentence. See United States v.
Grijalva-Lopez, No. 04-10068, 108 Fed. Appx. 157, (5th Cir. 2004)
(unpublished). Following our judgment, Grijalva-Lopez filed a
*
This appeal is being decided by a quorum due to the death
of Judge Reynaldo G. Garza. 28 U.S.C. § 46(d).
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petition for certiorari. The Supreme Court granted Grijalva-
Lopez’s petition for certiorari, vacated our judgment, and remanded
the case to this court for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). We now reconsider the
matter in light of Booker and decide to reinstate our previous
judgment affirming Grijalva-Lopez’s conviction and sentence.
Grijalva-Lopez raised a Booker-related challenge to his
sentence for the first time in a supplemental brief before his
direct appeal was submitted to this court. Because Appellant made
no Booker-related objection in the district court, however,
Appellant’s claim must fail under the plain-error test discussed in
United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005). Our
review of the record reveals no basis for concluding that the
district court would have imposed a less severe sentence if the
district court had proceeded under advisory, rather than mandatory
guidelines. In fact, the record indicates that the court would not
have imposed a lighter sentence. First, the court upwardly
departed from a guideline range of 21-27 months to a sentence of 87
months. The court also ordered defendant to serve this sentence
consecutively to a sentence he was serving at the time the court
imposed this sentence.
Grijalva-Lopez also argues that application of Justice
Breyer’s remedial opinion in Booker would strip him of his
constitutional protections against ex post facto laws. He explains
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that Apprendi gave him the right to a jury trial on all facts
essential to his sentence and Justice Breyer’s remedial opinion in
Booker stripped that right away. In United States v. Scroggins,
411 F.3d 572, 575-76 (5th Cir. 2005) we rejected that argument and
held that Booker required us to apply both Justice Stevens’ merits
opinion and Justice Breyer’s remedial opinion in Booker to all
cases such as this one on direct review.
Finally, Grijalva-Lopez argues that his sentence was
unreasonable. Assuming arguendo that this argument can be made,
when this objection was not raised earlier, it has no merit with
respect to this guideline sentence. See Mares, 402 F.3d 511 (5th
Cir. 2005) (“If the sentencing judge exercises her discretion to
impose a sentence within a properly calculated Guideline range, in
our reasonableness review we will infer that the judge has
considered all the factors for a fair sentence set forth in the
Guidelines.”). Id. at 519.
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Grijalva-
Lopez’s conviction and sentence.
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