United States v. DeLeon-Garcia

143 F. App'x 588

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 5, 2005
• Docket: 04-20316
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed Jesus DeLeon-Garcia’s guilty-plea conviction for illegally reentering the United States, after having been deported and convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2); and his sentence to, inter alia, 56 months in prison. United States v. DeLeon-Garcia, 04-20316, 119 Fed. Appx. 605 (5th Cir.23 December 2004) (unpublished). The Supreme Court granted DeLeon-Garcia’s petition for writ of certiorari and for leave to proceed in forma pauperis; vacated our previous judgment; and remanded the case for further consideration in the light of United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). DeLeon-Garcia v. United States, — U.S. -, 125 S.Ct. 1997, 161 L.Ed.2d 852 (2005). We requested, and received, supplemental briefs addressing the impact of Booker. Having reconsidered our decision pursuant to the Supreme Court’s instructions, we reinstate our judgment affirming the conviction and sentence.

DeLeon-Garcia first raised Booker-error on direct appeal; therefore, our review is only for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005), petition for cert. filed, (U.S. 31 Mar. 2005) (No. 04-9517). As DeLeonGarcia concedes, he cannot show “that the error ... affected the outcome of the district court proceedings”. Id. at 521 (quotation omitted). Accordingly, he fails the third prong of plain-error review.

DeLeon-Garcia also contends: the district court committed “structural error” when it sentenced him under a mandatory guidelines system; therefore, prejudice to his substantial rights should be presumed. He recognizes, however, that our court has rejected this contention as inconsistent with Mares, see United States v. Malveaux, 411 F.3d 558, 561 n. 9 (5th Cir.2005), and raises it only to preserve it for possible further review by the Supreme Court.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.