United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 12, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40245
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IVAN RICARDO CIFUENTES-CAYCEDO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-252-1
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:1
This court affirmed Ivan Ricardo Cifuentes-Caycedo’s
conviction and sentence. United States v. Cifuentes-Caycedo, 111
Fed. Appx. 772 (5th Cir. 2004). The Supreme Court vacated and
remanded for further consideration in the light of United States v.
Booker, 125 S.Ct. 738 (2005). Cifuentes-Caycedo v. United States,
125 S.Ct. 1679 (2005). We requested and received supplemental
letter briefs addressing the impact of Booker.
1
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this opinion should not be published and is not precedent except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.
In his supplemental brief, Cifuentes-Caycedo argues that his
sentence was enhanced on the basis of facts not found by the jury,
in violation of the Sixth Amendment, and that there was error under
Booker because he was sentenced under mandatory sentencing
guidelines. Because he did not object on these grounds in the
district court, we review his sentence only for plain error. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied,
126 S.Ct. 43 (2005).2
Under plain error review, Cifuentes-Caycedo must show that
there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton, 535 U.S. 625, 631
(2002). If he makes such a showing, we may exercise our discretion
to correct the error if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. The
first two prongs of the plain error test are satisfied here:
Cifuentes-Caycedo’s sentence was enhanced based on facts found by
the judge but not by the jury under a mandatory Guidelines regime.
See Mares, 402 F.3d 519-20.
Under the third prong of the plain error test, Cifuentes-
Caycedo must show that the error affected his substantial rights.
2
To preserve the issue for further review in the Supreme
Court, Cifuentes-Caycedo contends that the standard of review
should be de novo because he objected to the factual sufficiency of
the evidence supporting, as well as the district court’s
application of, the extra-verdict sentencing enhancements. He
recognizes that this argument is foreclosed by this court’s
decisions in United States v. Pennell, 409 F.3d 240 (5th Cir.
2005), and United States v. Akpan, 407 F.3d 360 (5th Cir. 2005).
2
He argues that the Booker errors affected his substantial rights
because he was sentenced on the basis of a Guidelines range that
greatly exceeded the Guidelines range supported by the jury
findings, in violation of his due process and Sixth Amendment
rights. He contends that Booker’s remedial holding (striking the
statutory provisions making the Sentencing Guidelines mandatory)
cannot, consistently with due process, be applied retroactively
against him, because to do so would deprive him of his Sixth
Amendment right to be sentenced on the basis of facts proven to a
jury beyond a reasonable doubt. This contention is foreclosed by
Booker. See United States v. Scroggins, 411 F.3d 572, 576 (5th
Cir. 2005) (rejecting a similar argument and holding that both the
Sixth Amendment holding of Booker and its remedial interpretation
of the Sentencing Act apply to all cases on direct review).
Cifuentes-Caycedo’s reliance on the plain error analysis set
forth in United States v. Dazey, 403 F.3d 1147, 1175 (10th Cir.
2005) (holding that defendant can show Booker Sixth Amendment error
affected his substantial rights by showing a reasonable probability
that a jury applying a reasonable doubt standard would not have
found the same facts that a judge found by a preponderance of the
evidence), is unavailing in the light of Mares. Cifuentes-Caycedo
has not met his burden, under Mares, of “demonstrating that the
result would have likely been different had the judge been
3
sentencing under the Booker advisory regime rather than the pre-
Booker mandatory regime.” Mares, 402 F.3d at 522.3
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore reinstate our judgment
affirming Cifuentes-Caycedo’s conviction and sentence.
JUDGMENT REINSTATED.
3
To preserve the issues for further review in the Supreme
Court, Cifuentes-Caycedo argues that Booker error is structural or
at least presumptively prejudicial. These arguments are foreclosed
by our precedent. See United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005); United
States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert. denied,
126 S.Ct. 194 (2005).
4