United States v. Cuvillos-Hernandez

136 F. App'x 653

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III Clerk No. 04-40843 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISIDRO CUVILLOS-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:03-CR-184-ALL-RAS --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

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, 125 S. Ct. 738 (2005), that he is

entitled to resentencing because the district court erred in

sentencing him under a mandatory application of the Sentencing

Guidelines.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40843 -2-

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.