United States v. Cuvillos-Hernandez

135 F. App'x 749

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 2005
• Docket: No. 04-40843
• Status: Published

Opinion

PER CURIAM:

*

Isidro Cuvillos-Hernandez (“Cuvillos”) appeals the 51-month sentence imposed by the district court following his guilty-plea conviction to being illegally found in the United States after removal. See 8 U.S.C. § 1326. Cuvillos argues, pursuant to United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that he is entitled to resentencing because the district court erred in sentencing him under a mandatory application of the Sentencing Guidelines.

Because Cuvillos did not raise an argument regarding the mandatory application of the Sentencing Guidelines in the district court, it is reviewed only for plain error. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir.2005). “[Cuvillos] has not shown, 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 (5th Cir.2005). Because Cuvillos has not satisfied his burden of establishing plain error, he is not entitled to relief. See id.

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.