United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-41709
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FIDEL ROBERTTO VASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:04-CR-115-ALL)
Before BARKSDALE, STEWART, AND CLEMENT, Circuit Judges.
PER CURIAM:*
Fidel Roberto Vasquez appeals the 96-month sentence imposed
following his guilty-plea conviction and sentence for illegal
reentry following deportation in violation of 8 U.S.C. § 1326.
Vasquez contends the district court violated United States v.
Booker, 125 S. Ct. 738 (2005) when it sentenced him pursuant to a
mandatory application of the Sentencing Guidelines. He also claims
the enhancement of his sentence violated the Sixth Amendment
*
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this opinion should not be published and is not precedent except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.
because it was based on facts not admitted by him or proven to a
jury.
As Vasquez concedes, he did not object on these grounds in the
district court. Therefore, our review is only for plain error.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th
Cir.), cert. denied, 2005 WL 1811485 (U.S. 3 Oct. 2005) (No. 05-
5556). Accordingly, Vasquez must show obvious error that affects
his substantial rights. See United States v. Mares, 402 F.3d 511,
520 (5th Cir.), cert. denied, 2005 WL 816208 (U.S. 3 Oct. 2005)
(No. 04-9517).
Before applying this standard, we must address Vasquez’s plea
agreement, which contained a provision waiving the right to appeal
other than for: “(a) any punishment imposed in excess of the
statutory maximum; (b) any upward departure from the guideline
range deemed most applicable by the sentencing court; (c)
arithmetic errors in the guidelines calculations; and (d) a claim
of ineffective assistance of counsel”. Vasquez does not explicitly
raise any of these four bases on appeal, and our precedent
forecloses a claim that a sentence given pursuant to the mandatory
guidelines is an upward departure. United States v. McKinney, 406
F.3d 744, 746-47 (5th Cir. 2005).
Neither Vasquez nor the government addresses the effect of the
appeal-waiver, which we may examine sua sponte. See United States
v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001); United States v.
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Rhodes, 253 F.3d 800, 804 (5th Cir. 2001) (disregarding waiver
provision where Government expressly declined to rely on it). In
this instance, we need not do so, because Vasquez’s appeal fails
under the applicable plain error standard of review.
To establish that a Booker error affects substantial rights,
Vasquez must show the district court would have reached a
significantly different result under an advisory Guidelines system.
Mares, 403 F.3d at 521. Vasquez fails to point to anything in the
record indicating the district court would have imposed a different
sentence had it known the Sentencing Guidelines were advisory.
Given the lack of any indication in the record that the district
court would have reached a different conclusion, Vasquez has failed
to establish plain error. See id. at 520-22.
Counsel are cautioned that future failure to brief the effect
of an appeal-waiver may result in sanctions.
AFFIRMED
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