United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 1, 2005
Charles R. Fulbruge III
Clerk
No. 04-40608
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ARTURO SAN MARTIN,
also known as Ricardo Hernandez-Lozano,
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-683-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:*
This court affirmed the judgment of conviction and sentence
of Arturo San Martin. United States v. San Martin, 117 Fed.
Appx. 985 (5th Cir. Dec. 17, 2004) (unpublished). The Supreme
Court vacated and remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738 (2005). We 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this opinion should not be published and is not precedent except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. 04-40608
-2-
San Martin contends that the district court illegally
sentenced him pursuant to a mandatory Sentencing Guidelines
regime, in violation of Booker. He concedes that such argument
was raised for the first time on direct appeal and therefore is
reviewable for plain error. See United States v. Mares, 402 F.3d
511, 520-21 (5th Cir. 2005), cert. denied, --- U.S. ----, 126 S.
Ct. 43 (2005). This court finds plain error when: (1) there was
an error; (2) the error was clear and obvious; and (3) the error
affected the defendant’s substantial rights. Id. at 520. Here,
the first two prongs of the plain-error test are readily
satisfied because it is clear after Booker that application of
the Sentencing Guidelines in their mandatory form constitutes
error that is plain. Id. at 521.
To satisfy the third prong of the plain-error test, San
Martin must show that his “substantial rights” were affected.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 267 (2005).
“[T]he pertinent question is whether [the appellant] demonstrated
that the sentencing judge--sentencing under an advisory scheme
rather than a mandatory one--would have reached a significantly
different result.” Mares, 402 F.3d at 521. This question
requires us to assess whether “there is [an] 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” if sentencing under an advisory scheme.
No. 04-40608
-3-
Id. at 522. San Martin has conceded that he cannot make such a
showing under the Mares standard. To the extent that San Martin
argues that the Booker error is a “structural” one that is not
susceptible to a plain-error analysis, or that he alternatively
contends that plain-error prejudice should be presumed, this
court recently rejected such arguments. United States v.
Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005), cert. denied,
No. 05-6242, 2005 WL 2494163, at *1 (Oct. 11, 2005).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance of this case, we
reinstate our judgment affirming San Martin’s conviction and
sentence.
AFFIRMED.