United States v. Garza-Miranda

136 F. App'x 667

Opinion

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

Charles R. Fulbruge III Clerk No. 04-41254 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO GARZA-MIRANDA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-314-ALL --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Alberto Garza-Miranda (“Garza”) appeals the 33-month

sentence of imprisonment imposed following his guilty-plea

conviction of one count of being found illegally in the United

States following removal. See 8 U.S.C. § 1326(a), (b).

Garza, relying on Blakely v. Washington, 124 S. Ct. 2531

(2004), argues that the district court violated his rights under

the Sixth Amendment by enhancing his sentence by 16 levels under

U.S.S.G. § 2L1.2(b)(1)(A)(i). The Sixth Amendment holding of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41254 -2-

Blakely applies to the federal sentencing guidelines. See United

States v. Booker, 125 S. Ct. 738, 746 (2005). Because Garza did

not raise his argument in the district court, our review is for

plain error only. See United States v. Mares, 402 F.3d 511, 520

(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517). Our review of the record reveals no indication

that the district court, sentencing under an advisory scheme

rather than a mandatory one, would have reached a significantly

different result as to Garza’s sentence. See id. at 521.

Because Garza cannot establish that his substantial rights were

affected, he cannot establish plain error. See id. Accordingly,

the judgment of the district court is AFFIRMED.