United States v. Garcia-Coronado

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 31, 2005

Charles R. Fulbruge III Clerk No. 03-40228 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONSO GARCIA-CORONADO, also known as Poncho,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas No. 04-8039 -------------------- ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. * PER CURIAM:

We dismissed Alfonso Garcia-Coronado’s (Garcia’s) appeal of

the district court’s sentence for conspiracy to transport and

harbor aliens for financial gain. See United States v. Garcia-

Coronado, 108 Fed. Appx. 939 (5th Cir. 2004), vacated by 125 S.

Ct. 1362 (2005). He argued that his sentence constituted

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 reversible error because, inter alia, the district court violated

his Sixth Amendment rights under Blakely v. Washington, 124 S.

Ct. 2531 (2004). We dismissed his appeal, ruling that reversal

of Garcia’s sentence on Blakely grounds was foreclosed by United

States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated by 125

S. Ct. 1003 (2005). Garcia subsequently appealed to the U.S.

Supreme Court. The Supreme Court vacated this Court’s judgment

and remanded for further consideration in light of United States

v. Booker, 125 S. Ct. 738 (2005).

Garcia entered into a plea agreement wherein he waived his

right to appeal a sentence imposed within the U.S. Sentencing

Guideline range. The district court followed the applicable

guidelines in this case. Thus, Garcia’s Booker argument is

foreclosed by his plea agreement. See United States v. McKinney,

__ F.3d __, 2005 U.S. App. LEXIS 6530, *6-10 (5th Cir. Apr. 15,

2005).

Assuming arguendo that we could entertain a Booker-based

appeal of Garcia’s sentence, we still would not reverse his

sentence or vacate it and remand for resentencing. Garcia did

not object on Sixth Amendment/Booker grounds to his sentence in

the district court. Therefore, we would review his sentence for

plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.

2005). Under that standard we will reverse if an appellant can

show that (1) there is error; (2) the error is plain; and (3) the

2 error affects “substantial rights,” i.e., the error “must have

affected the outcome of the district court proceedings.” United

States v. Olano, 507 U.S. 725, 732-34 (1993). “‘If all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

“seriously affects the fairness, integrity, or public reputation

of judicial proceedings.”’” United States v. Cotton, 535 U.S.

625, 631 (2002) (quoting Johnson v. United States, 520 U.S. 461,

467 (1997)).

Assuming Garcia’s sentence constitutes Booker error, we find

that his substantial rights were not affected. In order to show

that substantial rights were affected, Garcia must “demonstrate[]

that the sentencing judge--sentencing under an advisory scheme

rather than a mandatory one--would have reached a significantly

different result.” Mares, 402 F.3d at 521. A review of the

sentencing hearing does not yield any evidence that the

sentencing judge would have reached a different result. Thus, on

this ground, we affirm Garcia’s sentence in the alternative.

Accordingly, we reinstate our prior judgment affirming

Garcia’s sentence.