United States v. Hernandez-Hernandez

141 F. App'x 318

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 26, 2005

Charles R. Fulbruge III Clerk No. 03-40902 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VALENTINE HERNANDEZ-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B:03-CR-189-1 --------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

This court affirmed the sentence of Valentine Hernandez-

Hernandez (Hernandez). See United States v. Hernandez-Hernandez,

87 Fed. Appx. 425 (5th Cir. 2004) (per curiam). The Supreme

Court vacated and remanded for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005). See Newsome v.

United States, 125 S. Ct. 1112 (2005). This court requested and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40902 -2-

received supplemental letter briefs addressing the impact of

Booker.

Our original opinion, in which we rejected Hernandez’s

challenge to a condition of supervised release that appeared in

the written judgment but was not orally pronounced by the

district court at sentencing, is reinstated. See United States

v. Hernandez-Hernandez, 87 Fed. Appx. 425 (5th Cir. 2004) (per

curiam). Our original opinion is supplemented with the

following.

Hernandez argues that the district court erred in sentencing

him pursuant to a mandatory application of the sentencing

guidelines. He concedes that he did not object to his sentence

in the district court under Blakely v. Washington, 124 S. Ct.

2531 (2004), or under Booker, and that his failure to make an

objection of that type results in review for plain error.

Under the plain-error standard, the defendant bears the

burden of showing that (1) there is an error, (2) the error is

plain, and (3) the error affects substantial rights. See United

States v. Olano, 507 U.S. 725, 732 (1993). If these conditions

are satisfied, this court may exercise its discretion to correct

the error only if it “seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.” Id. at 736-37

(internal quotation marks and citation omitted).

To satisfy the third prong of the plain error test in light

of Booker, a defendant must demonstrate “with a probability No. 03-40902 -3-

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). Absent any indication in the record that the district

court would have imposed a lower sentence, a defendant does not

meet this burden. See United States v. Mares, 402 F.3d 511, 522

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

(No. 04-9517).

Hernandez contends that the error committed by the district

court is structural or presumptively prejudicial. This argument

is foreclosed. See United States v. Martinez-Lugo, 411 F.3d 597,

601 (5th Cir. 2005). Hernandez seeks to preserve this issue for

further review.

Hernandez also argues that his substantial rights were

affected. Hernandez notes that he was sentenced at the low end

of the guideline range, and he renews the argument from his

motion for downward departure regarding the neglect of his

children, contending that the district court alluded to the

veracity of his claims by encouraging him “to report the

situation to Child Protective Services.” Based on these factors,

Hernandez asserts that it is reasonably probable that the

district court would have imposed a lower sentence under a post-

Booker advisory regime. No. 03-40902 -4-

Here, “there is no indication in the record from the

sentencing judge’s remarks or otherwise that gives us any clue as

to whether she would have reached a different conclusion” as to

Hernandez’s sentence had she been sentencing under an advisory

regime. See Mares, 402 F.3d at 522. Moreover, a sentence at the

bottom of the guideline range is insufficient to demonstrate that

the district court would have imposed a different sentence under

an advisory scheme. See United States v. Bringier, 405 F.3d 310,

317-18 n.4 (5th Cir. 2005), petition for cert. filed (July 26,

2005) (05-5535). Hernandez has therefore failed to meet his

burden of establishing that his substantial rights were affected

under the third prong of the plain error test. See Mares,

402 F.3d at 522.

AFFIRMED.