United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 17, 2005
Charles R. Fulbruge III
Clerk
No. 03-41744
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO G. PEREZ-CAVASOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1229-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Rogelio G. Perez-Cavasos (“Perez”) appeals the concurrent 51-
month sentences imposed following his jury-trial convictions of
importing more than 50 kilograms of marijuana and possessing with
intent to distribute more than 50 kilograms of marijuana. Perez’s
sentence was based on the district court’s sentencing determination
that Perez was responsible for 88.6 kilograms of marijuana.
Perez argues that his sentence was imposed in violation of
*
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opinion should not be published and is not precedent except under the limited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.
United States v. Booker, 125 S. Ct. 738 (2005), in that the
district court enhanced his sentence based on a determination of
drug quantity not made by a jury or proven beyond a reasonable
doubt. He also contends that the district court erred under Booker
in sentencing him pursuant to a mandatory application of the
federal Sentencing Guidelines.
As Perez concedes, this court’s review of his Booker-based
claims is for plain error because he did not object to his sentence
in the district court. See United States v. Mares, 402 F.3d 511,
520-21 (5th Cir. 2005), petition for cert. filed (Mar. 31,
2005)(No. 04-9517). In order to establish plain error, Perez must
establish that (1) there is an error; (2) that is clear or obvious;
and (3) that affects his substantial rights. United States v.
Olano, 507 U.S. 725, 732-34 (1993). If these criteria are met,
this court has the authority correct the error, but is not required
to do so. Id. at 736.
Perez contends that he is entitled to retroactive application
of the Sixth Amendment holding of Booker, but he argues that the
Due Process Clause of the Fifth Amendment precludes the application
of the remedial holding of Booker to his case. Perez’s contention
that the remedial holding of Booker cannot be applied in his case
runs directly counter to Booker’s determination that both the Sixth
Amendment holding and the remedial holding must be applied to all
cases on direct review, see Booker, 125 S. Ct. at 769, and is
therefore foreclosed.
2
Perez seeks to preserve for further review the argument that
Booker error is structural or at least presumptively prejudicial.
This court, however, has rejected arguments that Booker error is
structural and that Booker error should be presumed prejudicial, as
such claims conflict with Mares. See United States v. Malveaux,
411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for cert. filed
(July 11, 2005) (No. 05-5297).
Perez also contends that, because he was a first-time
offender, it is at least reasonably probable that the district
court would have imposed a lower sentence had it not believed it
was bound by mandatory sentencing guidelines. To show that his
substantial rights were affected, Perez must show that the district
court’s error “affected the outcome of the district court
proceedings” such that there is a probability of error “sufficient
to undermine confidence in the outcome.” Mares, 402 F.3d at 521
(internal quotation marks and citations omitted). Because
“there is no indication in the record from the sentencing judge’s
remarks or otherwise that gives us any clue as to whether [he]
would have reached a different conclusion,” Perez cannot establish
plain error. See Mares, 402 F.3d at 522. Accordingly, Perez’s
sentence is AFFIRMED.
3