United States v. Medina-Teniente

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.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-357-ALL
--------------------

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this opinion should not be published and is not precedent except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
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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.