United States v. Arellano-Rios

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 24, 2005

Charles R. Fulbruge III Clerk No. 04-40512 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANGEL SILVESTRE ARELLANO-RIOS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-50-1 --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

This court affirmed the sentence of Angel Silvestre

Arrellano-Rios. United States v. Arellano-Rios, No. 04-40512

(5th Cir. Dec. 17, 2004) (unpublished). The Supreme Court

vacated this court’s decision and remanded the case for further

consideration in light of United States v. Booker, 125 S. Ct. 738

(2005). See De La Cruz-Gonzales v. United States, 125 S. Ct.

1995 (2005). We requested and received supplemental letter

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-40512 -2-

briefs addressing the impact of Booker. Arellano argues that he

is entitled to resentencing because the district court sentenced

him under the mandatory application of the United States

Sentencing Guidelines that was prohibited by Booker.

In United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th

Cir. 2005), this court rejected the argument that Arellano seeks

to preserve for further review, that Fanfan error is structural

and presumptively prejudicial. Instead, Fanfan error is subject

to the plain error analysis set forth in United States v. Mares,

402 F.3d 511 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517). Martinez-Lugo, 411 F.3d at 600-01. Thus,

because Arellano raises this issue for the first time on appeal,

and because he raised an argument related to Blakely v.

Washington, 542 U.S. 296 (2004), in his initial brief before this

court, his argument is reviewable for plain error. See United

States v. Cruz, _ F.3d _, No. 03-40886, 2005 WL 1706518, *2 (5th

Cir. July 22, 2005).

Arellano concedes that the district court did not give any

indication that his sentence would have been lower if the

district court had sentenced him under the post-Booker advisory

regime. Arellano has therefore failed to establish “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.” United States v. Infante, 404 F.3d 376, 395 No. 04-40512 -3-

(5th Cir. 2005). He has therefore failed to show that the error

affected his substantial rights and has thus failed to establish

plain error. See Martinez-Lugo, 411 F.3d at 600-01.

Because nothing in Booker requires us to change our prior

affirmance in this case, we reinstate our judgment affirming

Arellano’s sentence.

AFFIRMED.