United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-40477
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE SEPULVEDA-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-837-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Vicente Sepulveda-Rodriguez appeals the sentence imposed
following his guilty-plea conviction of possessing with the
intent to distribute cocaine. Although Sepulveda-Rodriguez
signed a waiver-of-appeal provision as part of his written plea
agreement, we pretermit discussion of the validity of that waiver
because Sepulveda-Rodriguez is not entitled to relief.
For the first time on appeal, Sepulveda-Rodriguez argues
that the district court erred by sentencing him to the mandatory
*
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this opinion should not be published and is not precedent except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. 04-40477
-2-
ten-year minimum term of imprisonment set forth in 21 U.S.C.
§ 841(b)(1)(A). He contends that the Supreme Court’s opinion in
United States v. Booker, 125 S. Ct. 738 (2005), rendered
discretionary a sentencing court’s application of the minimum
sentence set forth in 21 U.S.C. § 841(b)(1)(A) and the “safety
valve” provision set forth in 18 U.S.C. § 3553(f). However,
Booker is silent as to those issues, and Sepulveda-Rodriguez has
cited no other authority for his argument. Sepulveda-Rodriguez
has not shown error.
Also for the first time on appeal, Sepulveda-Rodriguez
argues that the district court erred when it sentenced him
pursuant to the mandatory United States Sentencing Guidelines
scheme held unconstitutional in Booker. Application of the
Guidelines in their mandatory form constitutes error that is
plain. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir.), cert. denied, 126 S. Ct. 267 (2005). However, the
district court’s error did not affect the outcome of the
sentencing proceedings. As Sepulveda-Rodriguez has not shown
that the district court’s error affected his substantial rights,
he has not established reversible plain error. See id. at 733-
34.
The judgment of the district court is AFFIRMED.