United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 29, 2006
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
No. 03-20806 Clerk
Summary Calendar
______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATILDA BONILLA,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas,
Case No. H-94-CR-162-1
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Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
In an opinion dated May 24, 2004, this court
affirmed the district court’s upward departure in
sentencing defendant Matilda Bonilla for failing to
appear for trial in connection with a 1991 drug charge.
See United States v. Bonilla, 97 F. App’x 502 (5th Cir.
*
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that this opinion should not be published and is not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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2004). While Bonilla’s petition for a writ of
certiorari was pending in the United States Supreme
Court, the Court decided United States v. Booker, 543
U.S. 220 (2005). The Court granted Bonilla’s petition
for certiorari and vacated our decision for
consideration in light of Booker. See Bonilla v. United
States, 543 U.S. 1109 (2005).
Bonilla did not make a Sixth Amendment objection to
the district court’s upward departure at sentencing, so
we review her sentence for plain error. See United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). To
prevail under the plain error standard, a defendant must
show that the error had an effect on the outcome of the
proceedings. See United States v. Saldana, 427 F.3d
298, 308 (5th Cir. 2005); see also United States v.
Infante, 404 F.3d 376, 394-95 (5th Cir. 2005) (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”). The record reflects that the sentencing
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judge affirmatively exercised his discretion to depart
upwardly from the applicable guideline range in this
case, and there is nothing before the court to even
suggest that Bonilla might have received a lesser
sentence under an advisory guideline regime.
Accordingly, Bonilla has not met her burden of
showing that any error in this case affected the outcome
of her sentencing hearing. See Saldana, 427 F.3d at 308
n.38 (“[W]e doubt whether a defendant could ever
overcome plain error review of a claimed Booker
violation in cases where the district court has upwardly
departed.”); United States v. Lee, 399 F.3d 864, 867
(7th Cir. 2005) (“By moving up, the judge evinces not
only a belief that discretion exists but also a
disposition to exercise it adversely to the accused.”).
We therefore AFFIRM Bonilla’s sentence.
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