United States Court of Appeals
IN THE UNITED STATES COURT OF APPEALS Fifth Circuit
FILED
FOR THE FIFTH CIRCUIT December 12, 2005
Charles R. Fulbruge III
Clerk
No. 03-41170
Summary Calender
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA ORALIA LOZANO-TAMEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(03-CR-277)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Maria Oralia Lozano-Tamez pled guilty to possession with intent to distribute more than 100
grams of black tar heroin in contravention of 18 U.S.C. § 2, 841(a)(1), (b)(1)(B). She was sentenced
to 37 months incarceration, a sentence which was, in all respects, affirmed by this court. United
States v. Lozano-Tamez, 90 Fed.Appx. 79 (5th Cir. 2004)(per curiam). Subsequently however 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 R. 47.5, the court has determined that this opinion should not be published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.
Supreme Co urt vacated Lozano-Tamez’s sentence in light of United States v. Booker, 125 S.Ct.
1419 (2005). See Jimenez-Velasco v. United States, 125 S.Ct. 1110 (2005). Thereafter, this court
directed the parties to submit supplemental briefing to determine whether, based on Booker, Lozano-
Tamez’s sentence had been rendered constitutionally infirm.
Lozano-Tamez concedes that she did not object to her sentence either on the grounds: (1) that
the judge enhanced her sentence based on facts admitted by her or proven beyond a reasonable doubt
by a jury, see Booker, 125 S.Ct. 738, 756 (2005), nor (2) premised on the fact that she was sentenced
under the Sentencing Guidelines when they were understood to be mandatory. Id. at 764-65.
Therefore, Lozano-Tamez’s sentence will be reviewed for plain error. Our plain error inquiry involves
four related prongs: (1) there must have been an error; (2) that was clear and obvious; and (3) said
error affected the substantial rights of the defendant. United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005). If the foregoing elements are satisfied, a reviewing court would properly find plain error
if: (4) a demonstration is made that the error serio usly affected “the fairness, integrity, or public
reputation of the judicial proceedings.” Id.
We conclude that there has been no Booker error in this case. Lozano-Tamez’s 37 month
sentence was at the bottom the Sentencing Guidelines -- given that her Criminal History Category
was I and Total Offense Level was 21 -- thus no showing can be made that she was subjected to a
sentence enhancement based on conduct admitted by her o r proven to a jury beyond a reasonable
doubt. Second, given that the onus is placed on her to establish that “the sent encing judge –
sentencing under an advisory scheme rather than a mandatory one – would have reached a
significantly different result” Mares, 402 F.3d at 521, we find nothing in the record remotely suggests
that she has met this burden. Moreover, we are also unpersuaded by Lozano-Tamez argument that
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the sentencing error in this case was “structural,” as this argument has already been foreclosed by this
court. See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005). Accordingly,
Lozano-Tamez’s sentence must be affirmed.
AFFIRMED.
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