United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 14, 2005
Charles R. Fulbruge III
Clerk
No. 03-41080
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDRO MEDINA-TENIENTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-357-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Sandro Medina-Teniente.
United States v. Medina-Teniente, No. 03-41080 (5th Cir. Mar. 15,
2004). The Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005). See Newsome v. United States, 125 S. Ct. 1112 (2005).
We have 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this opinion should not be published and is not precedent except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. 03-41080
-2-
Medina-Teniente argues on remand that the district court
erred in sentencing him pursuant to a mandatory application of
the sentencing guidelines; however, he concedes that he did not
object to his sentence in the district court under Blakely v.
Washington** or under Booker. Medina-Teniente’s failure to make
such an objection results in review for plain error.
Under the plain-error standard, the defendant bears the
burden of showing that (1) there is an error, (2) the error is
plain, and (3) the error affects substantial rights. See United
States v. Olano, 507 U.S. 725, 732 (1993). If these conditions
are satisfied, this court may exercise its discretion to correct
the error only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. at 736-37
(internal quotation marks and citation omitted).
To satisfy the third prong of the plain error test in light
of Booker, a defendant must demonstrate “with a probability
sufficient to undermine confidence in the outcome, that if the
judge had sentenced him under an advisory sentencing regime
rather than a mandatory one, he would have received a lesser
sentence.” United States v. Infante, 404 F.3d 376, 395 (5th Cir.
2005). Absent any indication in the record that the district
court would have imposed a lower sentence, a defendant does not
meet this burden. See United States v. Mares, 402 F.3d 511, 522
(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
**
542 U.S. 296 (2004).
No. 03-41080
-3-
Medina-Teniente contends that the error committed by the
district court is structural or presumptively prejudicial;
however, he concedes that this issue is foreclosed by circuit
precedent, and he raises it to preserve the issue for further
review. We note that the issue is preserved. We agree with
Medina-Teniente’s concession that he cannot show that his
sentence under mandatory guidelines affected his substantial
rights. Thus, Medina-Teniente has failed to meet his burden of
establishing that he is entitled to relief on plain error review.
See Mares, 402 F.3d at 522.
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 the
defendant’s conviction and sentence.
AFFIRMED.