United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-51438
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1207-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Fernando Martinez was convicted by a jury on five counts of
conspiracy and importation of more than five kilograms of cocaine,
conspiracy and possession with intent to distribute more than five
kilograms of cocaine, and making a false statement. The district
court sentenced Martinez to 151 months in prison on the four
conspiracy and cocaine counts and 60 months on the false statement
count. All sentences were to be served concurrently.
Martinez argues that the district court erred in refusing the
*
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opinion should not be published and is not precedent except under the limited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.
following proposed jury instruction:
Nervousness is a normal reaction to events that one
does not understand. For that reason,
general nervousness is not sufficient to show
consciousness of guilt. In the absence of facts
that suggest that the defendant’s nervousness or
anxiety derives from an underlying consciousness of
criminal behavior, evidence of nervousness is
insufficient to support a finding of guilty
knowledge.
This court reviews the district court’s refusal to give a jury
instruction requested by the defense for abuse of discretion.
United States v. John, 309 F.3d 298, 304 (5th Cir. 2002). “A court
commits reversible error where (1) the requested instruction is
substantially correct; (2) the requested issue is not substantially
covered in the charge; and (3) the instruction ‘concerns an
important point in the trial so that the failure to give it
seriously impaired the defendant’s ability to effectively present
a given defense.’” Id. (citation omitted).
None of the three factors firmly support the general
nervousness instruction. Martinez’s requested charge was an
incomplete statement of law with regard to nervousness because
nervousness at an inspection station is among the circumstances
that can be probative of guilty knowledge. United States v. Diaz-
Carreon, 915 F.2d 951, 954 (5th Cir. 1990). The charge adequately
instructed the jury on the requisite mental state because the
language conveyed to the jury, at least in broad terms, that
nervousness could be among the circumstances that indicate
Martinez’s state of mind. Contrary to Martinez’s argument, the
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evidence presented at trial suggested several connections between
Martinez’s nervousness and consciousness of guilt. United States
v. Jones, 185 F.3d 459, 464 (5th Cir. 1999). The existence of the
substantial other evidence of guilty knowledge shows that the
district court did not abuse its discretion by concluding that an
instruction on general nervousness would not have been appropriate
and that the absence of such an instruction did not seriously
impair Martinez’s ability to present a defense.
Martinez argues that his sentence was imposed illegally in
light of the rule in United States v. Booker, 125 S. Ct. 738
(2005), for the first time on appeal. This court’s review is for
plain error. See United States v. Valenzuela-Quevedo, 407 F.3d
728, 732-33 (5th Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 3,
2005) (No. 05-5556); United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005), cert. denied, ___ S. Ct. ___ (Oct. 3, 2005)
(No. 04-9517).
After Booker, “[i]t is clear that application of the
Guidelines in their mandatory form constitutes error that is
plain.” Valenzuela-Quevedo, 407 F.3d at 733. To satisfy the
plain-error test in light of Booker, Martinez must demonstrate that
his substantial rights were affected by the error. United States
v. Infante, 404 F.3d 376, 395 (5th Cir. 2005). Contrary to
Martinez’s argument, there is nothing in the record indicating that
the district court would have imposed a different sentence under an
advisory Sentencing Guidelines scheme. United States v. Bringier,
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405 F.3d 310, 317 n.4 (5th Cir. 2005), cert. denied, ___ S. Ct. ___
(Oct. 3, 2005) (No. 05-5535). Martinez argues that the application
of the Mares/Bringier plain error standard is contrary to the plain
error standard enunciated in United States v. Dominguez Benitez,
542 U.S. 74 (2004). Martinez’s challenge to the showing required
under Mares and Bringier is unavailing. See United States v.
Eastland, 989 F.2d 760, 768 n.16 (5th Cir. 1993). Accordingly,
there is no basis for concluding that the district court would have
imposed a lower sentence under an advisory sentencing regime. See
Mares, 402 F.3d at 522.
AFFIRMED.
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