United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 3, 2006
for the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 04-50986
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO BAUTISTA-INZUNZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-1080)
Before GARZA, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
In this sentencing appeal, Appellant Francisco
Bautista-Inzunza (“Bautista”) argues (1) that the
district court committed reversible error under United
*
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that this opinion should not be published and is not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.
States v. Booker, 543 U.S. 220 (2005), by sentencing him
pursuant to a mandatory application of the Sentencing
Guidelines and (2) that his sentence violates due process
under Apprendi v. New Jersey, 530 U.S. 466 (2000),
because it exceeds the two-year statutory maximum for the
offense charged in the indictment. For the reasons stated
below, we affirm.
I. Background
Bautista was charged in a one-count indictment with
illegal re-entry in violation of 8 U.S.C. § 1326. The
indictment did not allege that Bautista had a prior
conviction. However, the Government filed a notice of
intent to seek an increased statutory penalty pursuant to
§ 1326(b)(2) on the basis of a prior drug-trafficking
conviction. Bautista pled guilty to the one-count
indictment before a magistrate judge, and the district
court accepted the magistrate’s recommendation that the
plea be accepted.
Prior to sentencing, the probation officer filed a
pre-sentence report (“PSR”) with the court. The PSR
assessed a base offense level of eight pursuant to
2
U.S.S.G. § 2L1.2(a); a sixteen-level increase in the
offense level pursuant to § 2L1.2(b)(1)(A) to reflect
Bautista’s prior conviction; and a three-level reduction
in the offense level pursuant to § 3E1.1 to reflect
Bautista’s acceptance of responsibility. This resulted in
a total offense level of twenty-one. Based on this total
offense level and a criminal history category of III, the
range of imprisonment under the Sentencing Guidelines was
forty-six to fifty-seven months.
Bautista filed an objection to the PSR in the
district court pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), arguing that a sentence in excess of two
years would violate due process because the fact of prior
conviction was not alleged in his indictment, submitted
to a jury, or proved beyond a reasonable doubt. He
conceded, however, that his Apprendi challenge was
foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), and raised it only to preserve it for
further review.
The district court overruled Bautista’s objection
prior to sentencing, and, bound by 18 U.S.C. § 3553(b)(1)
3
to impose a sentence within the forty-six to fifty-seven
month guideline range, sentenced Bautista to forty-six
months of imprisonment and three years of supervised
release. Bautista timely appealed.
After Bautista filed his notice of appeal, the
Supreme Court issued its opinion in United States v.
Booker, 543 U.S. 220 (2005), holding that pursuant to
Blakely v. Washington, 542 U.S. 296 (2004), the mandatory
application of the Sentencing Guidelines violated the
Sixth Amendment. Accordingly, the Court struck the
mandatory provisions of the Guidelines, rendering them
effectively advisory. Booker, 543 U.S. at 245. The Court
determined that its decision would apply to all cases
that were on direct review as of its date of issuance.
Id. at 268.
II. Analysis
A. Booker Challenge
Bautista argues that the district court committed
reversible error under Booker by sentencing him pursuant
to a mandatory application of the Sentencing Guidelines.
This is an alleged “Fanfan” error, see United States v.
4
Walters, 418 F.3d 461, 463 (5th Cir. 2005)
(differentiating between Sixth Amendment “Booker” error
and non-constitutional “Fanfan” error), that Bautista did
not preserve for appeal. We review non-preserved Fanfan
error for plain error. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005). Under plain error review, the
defendant bears the burden of proving (1) error, (2) that
is plain, and (3) that affects the defendant’s
substantial rights. Id. If the defendant meets this
burden, the Court “‘may then exercise its discretion to
notice a forfeited error but only if . . . the error
seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” Id. (quoting United
States v. Cotton, 535 U.S. 625, 631 (2002)).
Sentencing a defendant pursuant to a mandatory
application of the Sentencing Guidelines satisfies the
first two prongs of the plain error test. United States
v. Duarte-Juarez, 441 F.3d 336, 338 (5th Cir. 2006). To
satisfy the third prong, Bautista must demonstrate,
“‘with a probability sufficient to undermine confidence
in the outcome, that if the judge had sentenced him under
5
an advisory sentencing regime rather than a mandatory
one, he would have received a lesser sentence.’” Id.
(quoting United States v. Infante, 404 F.3d 376, 394-95
(5th Cir. 2005)). Bautista has not met this burden. The
only evidence Bautista offers as proof that the court
would have sentenced him to a lower sentence is the fact
that the court imposed the lowest sentence in the
guidelines range and a statement by the court indicating,
at best, that the sentence imposed was harsh: “It’s
amazing, huh? He gets almost the same sentence that a man
gets for bringing in four tons of marijuana.”1 The
imposition of a sentence at the low end of the guidelines
range, alone, “does not indicate that there is a
reasonable probability that the court would have imposed
a lesser sentence under advisory sentencing guidelines.”
Id. at 339 (citing United States v. Bringier, 405 F.3d
310, 317-18 & n.4 (5th Cir.), cert. denied, 126 S. Ct.
1
Bautista raises additional arguments in his reply
brief, e.g., that the district court would have imposed
a different sentence under an advisory scheme because of
“the sympathetic circumstances of Bautista’s case,” but
these are waived. United States v. Reinhart, 357 F.3d
521, 524 n.4 (5th Cir. 2004).
6
264 (2005)). Further, the combination of a low-end
guidelines sentence and an acknowledgment by the district
court that the sentence imposed was harsh is not enough
to satisfy the third prong of the plain error test.
Bringier, 405 F.3d at 317 n.4. In the absence of any
other evidence that the district court would have imposed
a lower sentence under an advisory guidelines scheme,
Bautista has failed to demonstrate plain error as
required under Mares.
B. Apprendi Challenge
Bautista argues that his sentence violates due
process under Apprendi v. New Jersey, 530 U.S. 466
(2000), because it exceeds the two-year statutory maximum
for the offense charged in the indictment. This argument
is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), as conceded by Bautista, and Bautista
only raises the argument to preserve it for further
review.
III. Conclusion
Because the district court’s error in sentencing
Bautista pursuant to a mandatory application of the
7
Sentencing Guidelines was not plain error and because
Bautista’s Apprendi challenge is foreclosed by Supreme
Court precedent, we affirm Bautista’s sentence.
AFFIRMED.
8