United States v. Cortez

140 F. App'x 594

Opinion

PER CURIAM: *

Jorge Cortez appeals his sentence after his guilty-plea conviction of possession of a prohibited object by an inmate. Cortez argues on appeal that his case should be remanded for resentencing because, under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court plainly erred in not considering all of the factors Usted in 18 U.S.C. § 3553 equahy and in not treating the Sentencing Guidelines as advisory.

As Cortez concedes, our review is for plain error. See United States v. Mares, 402 F.3d 511, 513 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). Here, the district court erred by imposing a sentence pursuant to a mandatory application of the Sentencing Guidelines. See Booker, 125 S.Ct. at 768; see also Mares, 402 F.3d at 520-21 & n. 9. However, Cortez cannot estabhsh that this error affected his substantial rights. The record does not estabhsh that the sentencing court would have imposed a different sentence had it been proceeding under an advisory guideline scheme. In the absence of a showing that his sentence likely would have been different, Cortez cannot estabhsh plain error, and his Booker argument fails. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005), petition for cert. filed (July 25, 2005) (No. 05-5556).

Cortez also asserts that in light of Booker, under 18 U.S.C. § 3584(a), the district court may now sentence him to a concurrent term of imprisonment. Regardless whether the Sentencing Guidelines required a consecutive sentence, the statute of conviction, 18 U.S.C. § 1791(a)(2), requires a consecutive sentence. See 18 U.S.C. § 1791(a)(2), (c). Thus, Booker did not affect whether the district court could have sentenced Cortez to a concurrent sentence. The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.