United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 12, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50146
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
SILVESTRE CUELLAR
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
(03-CR-1087)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM and DAVIS, Circuit Judges.*
PER CURIAM:**
In our previous opinion in this case, we affirmed Defendant-
Appellant’s conviction and sentence. See United States v. Cuellar,
No. 04-50146, 105 Fed. Appx. 617 (5th Cir. 2004) (per curiam)
(unpublished). Following our judgment, Cuellar filed a petition
*
This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 28 U.S.C. § 46(d).
**
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this opinion should not be published and is not precedent except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.
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for certiorari. The Supreme Court granted Cuellar’s petition for
certiorari, vacated our judgment, and remanded the case to this
court for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We now reconsider the matter in
light of Booker and decide to reinstate our previous judgment
affirming Cuellar’s conviction and sentence.
Cuellar raised a Booker-related challenge to his sentence for
the first time on direct appeal. Because Cuellar never raised a
Booker objection in trial court, however, the claim would fail
under the plain-error test discussed in United States v. Mares, 402
F.3d 511, 520-22 (5th Cir. 2005). The district court sentenced
Cuellar at the bottom of the guideline range, but gave no
indication it would have imposed a lesser sentence had the
guidelines been advisory. See United States v. Bringier, 405 F.3d
310 (5th Cir. 2005).
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Cuellar’s
conviction and sentence.
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