United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 8, 2005
Charles R. Fulbruge III
Clerk
No. 04-40022
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRISCILIANO JIMENEZ-CID, also known as
Romeo Garza
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-625-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM and DAVIS,* Circuit Judges.
PER CURIAM:**
We previously affirmed the sentence of Prisciliano Jimenez-
Cid for importation of marijuana. While petition for certiorari
with the Supreme Court was pending in this case, the Supreme
Court decided United States v. Booker.1 It subsequently granted
*
By quorum. Judge Pickering participated in the original
panel but has since retired.
**
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this opinion should not be published and is not precedent except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.
1
125 S.Ct. 738 (2005).
No. 04-40022
-2-
Jimenez-Cid’s petition for certiorari and vacated and remanded
for reconsideration in light of Booker.
The Government concedes, for purposes of argument, that
there was Booker error because the district court enhanced
Jimenez-Cid’s sentence based on facts, other than a prior
conviction, neither alleged in the indictment and proven to a
jury nor admitted by Jimenez-Cid. However, because Jimenez-Cid
concedes that he did not preserve this error, he must show that
the error was plain by showing that the district court would have
sentenced him less harshly had it known the Sentencing Guidelines
were not mandatory.2 He has not done so. There is no indication
in the record that the court would have given a lower sentence;
indeed, the only indication at all - that the court sentenced him
at the top of the Guidelines range - suggests the opposite.
Finally, Jimenez-Cid’s argument that Booker’s remedial holding
cannot be applied to him retroactively is foreclosed by this
court’s precedent.3
Jiminez-Cid’s sentence is AFFIRMED.
2
See United States v. Mares, 402 F.3d 511, 521-22 (5th Cir.
2005).
3
See United States v. Scroggins, 411 F.3d 572, 575-77 (5th
Cir. 2005).