United States v. Gonzalez-Orozco

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 10, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40390
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSE HIPOLITO GONZALEZ-OROZCO,

Defendant - Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-922-ALL
_________________________________________________________________

ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

This court affirmed Jose Hipolito Gonzalez-Orozco’s conviction

and sentence. United States v. Gonzalez-Orozco, 110 Fed. Appx. 471

(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). Gonzalez-Orozco v. United States, 125 S.Ct.

1368 (2005). We requested and received supplemental letter briefs

addressing the impact of Booker.

*
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this opinion should not be published and is not precedent except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, Gonzalez-Orozco argues that the

district court’s application of mandatory sentencing guidelines was

reversible plain error. See United States v. Mares, 402 F.3d 511,

520 (5th Cir.) (Booker arguments made for first time on direct

appeal reviewed for plain error), cert. denied, 126 S.Ct. 43

(2005). There is no plain error because, as Gonzalez-Orozco

concedes, there is no evidence in the record indicating that the

district court would have imposed a lesser sentence under advisory

sentencing guidelines. See United States v. Infante, 404 F.3d 376,

394-95 (5th Cir. 2005) (to satisfy third prong of plain error test

-- that error in question affected defendant’s substantial rights

-- defendant must show, “with a probability sufficient to undermine

confidence in the outcome, that if the judge had sentenced him

under an advisory sentencing regime rather than a mandatory one, he

would have received a lesser sentence”).

Alternatively, Gonzalez-Orozco contends that application of

the plain error standard is inappropriate because it would have

been futile for him to have objected to application of the

mandatory guidelines in the light of Fifth Circuit precedent

existing at the time of his sentencing, or because the remedial

portion of Booker was novel and unforeseeable at the time of his

sentencing. As he acknowledges, these arguments are foreclosed by

this court’s decision in Mares.

Finally, Gonzalez-Orozco contends that the Booker error was

structural and that prejudice should be presumed. This contention

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is also foreclosed by Mares. 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).

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 Gonzalez-Orozco’s conviction and sentence.

JUDGMENT REINSTATED.

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