United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 3, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10177
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOAQUIN CADENA MURIETTA-MALDONADO
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
In our previous opinion in this case, we affirmed Defendant-
Appellant’s conviction and sentence. See United States v.
Murietta-Maldonado, No. 04-10177, 111 Fed. Appx. 253, (5th Cir.
2004)(per curiam)(unpublished). Following our judgment, Murietta-
Maldonado filed a petition for certiorari. The Supreme Court
granted Murietta-Maldonado’s petition for certiorari, vacated our
*
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this opinion should not be published and is not precedent except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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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 Murietta-Maldonado’s
conviction and sentence.
Murietta-Maldonado raised a Booker-related challenge to his
sentence on direct appeal before this court. Because Appellant
made no Booker objection in the district court, however,
Appellant’s claim must fail under the plain-error test2 discussed
in United States v. Mares, 402 F.3d 511, 520-22 (5th Cir. 2005).
Murietta-Maldonado also argues that application of Justice
Breyer’s remedial opinion in Booker would strip him of his
constitutional protections against ex post facto laws. He explains
that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)
gave him the right to a jury trial on all facts essential to his
sentence, and Justice Breyer’s remedial opinion in Booker stripped
that right away. In United States v. Scroggins, 411 F.3d 572, 575-
76 (5th Cir. 2005), we rejected that argument and held that Booker
required us to apply both Justice Stevens’ merits opinion and
Justice Breyer’s remedial opinion in Booker to all cases such as
this one on direct review.
Finally, Murietta-Maldonado argues that his sentence was
2
The district court sentenced appellant at the top of
the guideline range and gave no indication of a desire to give a
different sentence had the guideline been advisory.
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unreasonable. Assuming arguendo that this argument can be made,
when this objection was not raised earlier, it has no merit with
respect to this guideline sentence. See Mares, 402 F.3d 511 (5th
Cir. 2005) (“If the sentencing judge exercises her discretion to
impose a sentence within a properly calculated Guideline range, in
our reasonableness review we will infer that the judge has
considered all the factors for a fair sentence set forth in the
Guidelines.”). Id. at 519.
For the reasons stated above, our prior disposition remains in
effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Murietta-
Maldonado’s conviction and sentence.
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