United States v. Hernandez-Gonzalez

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 25, 2005
• Docket: 04-40612
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 24, 2005

Charles R. Fulbruge III Clerk No. 04-40612 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE VLADIMIR HERNANDEZ-GONZALEZ, also known as Demecio Infante,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:03-CR-1000-ALL --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

We affirmed the judgment of conviction and sentence of Jose

Vladimir Hernandez-Gonzalez. United States v. Hernandez-

Gonzalez, No. 04-40612 (5th Cir. Jan. 17, 2005)(unpublished).

The Supreme Court vacated and remanded for further consideration

in light of United States v. Booker, 125 S. Ct. 738 (2005). See

de la Cruz-Gonzalez v. United States, 125 S. Ct. 1995 (2005). We

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40612 -2-

requested and received supplemental letter briefs addressing the

impact of Booker.

Hernandez-Gonzalez argues that his sentence should be

vacated because the district court sentenced him under mandatory

guidelines in violation of Booker. He argues that he should not

be required to show plain error because the district court’s

error was “structural.” He also argues that even under plain-

error review his sentence should be vacated.

Here, the district court erred by imposing a sentence

pursuant to a mandatory application of the sentencing guidelines.

See Booker, 125 S. Ct. at 768; see also United States v. Mares,

402 F.3d 511, 520-21 & n.9. (5th Cir. 2005), petition for cert.

filed, (Mar. 31, 2005) (No. 04-9517). However, Hernandez-

Gonzalez must establish that the error was “sufficient to

undermine confidence in the outcome [of the case].” United

States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005)

(internal quotation marks and citations omitted). Hernandez-

Gonzalez cannot make such a showing because the record does not

establish that the sentencing court would have imposed a

different sentence had it been proceeding under an advisory

guideline scheme. Although the district court sentenced

Hernandez-Gonzalez to the lowest end of the guideline range, it

did so without comment. In the absence of a showing that his

sentence likely would have been different had the Sentencing

Guidelines been advisory, Hernandez-Gonzalez cannot establish No. 04-40612 -3-

plain error, and his Booker argument fails. The judgment of the

district court is AFFIRMED.