United States v. Cantu-Marichalar

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 20, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20205
_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

UBALDO CANTU-MARICHALAR,

Defendant - Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-392-1
_________________________________________________________________

ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

This court affirmed Ubaldo Cantu-Marichalar’s conviction and

sentence. United States v. Cantu-Marichalar, 111 Fed. Appx. 323

(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). Cantu-Marichalar v. United States, 125 S.Ct.

1423 (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this opinion should not be published and is not precedent except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, Cantu-Marichalar argues that the

district court’s application of mandatory sentencing guidelines was

reversible plain error. Cantu-Marichalar acknowledges that he did

not raise this issue before the district court. Accordingly, we

review the claim only for plain error. United States v. Mares, 402

F.3d 511, 520 (5th Cir.), cert. denied, 126 S.Ct. 43 (2005). There

is no plain error because, as Cantu-Marichalar concedes, the

district court did not make any statements that could support an

inference that the district court would have imposed a lesser

sentence under advisory sentencing guidelines.

Cantu-Marichalar argues that the record supports a finding

that there is a reasonable probability that the district court

would have imposed a lower sentence under an advisory sentencing

scheme. In support of this contention, he points to the fact that

he received the minimum sentence under the guidelines range; and

that he filed a motion for downward departure based on cultural

assimilation because he had lived in the United States since he was

a young child and had significant family, cultural, and emotional

ties to the United States. He contends that, in a post-Booker

world, the district court might well have concluded that the

minimum sentence under the guidelines was greater than necessary to

meet the purposes of sentencing identified in 18 U.S.C. § 3553(a),

even if Cantu-Marichalar were unable to meet the standards for a

downward departure. Cantu-Marichalar has failed to carry his

burden of demonstrating that there is a reasonable probability that

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he would have received a lesser sentence under advisory guidelines.

See United States v. Bringier, 405 F.3d 310, 317-18 & n.4 (5th

Cir.) (sentencing judge’s acknowledgement that sentence was

“harsh”, and fact that sentencing judge imposed minimum sentence

under guideline range is not an “indication that the judge would

have reached a different conclusion under an advisory scheme”),

cert. denied, 126 S.Ct. 264 (2005); see also United States v.

Hernandez-Gonzalez, 405 F.3d 260, 262 (5th Cir.) (fact that

defendant received minimum sentence under Guidelines, and evidence

that defendant suffered from alcohol abuse problem that was

responsible for much of his criminal history and that he returned

illegally to the United States to earn money for his family in

Honduras was insufficient to demonstrate that sentencing judge

would have imposed lower sentence under advisory guidelines), cert.

denied, 126 U.S. 202 (2005).

Cantu-Marichalar 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, Cantu-Marichalar contends that the Booker error was

structural and that prejudice should be presumed. This contention

is also foreclosed by Mares. See United States v. Martinez-Lugo,

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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 Cantu-Marichalar’s conviction and sentence.

JUDGMENT REINSTATED.

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