United States v. Martinez

136 F. App'x 660

Opinion

PER CURIAM: *

Appellant Abel Martinez, in reliance on United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), contends that the district court plainly erred in sentencing him under a mandatory Federal Sentencing Guidelines system that Booker held to be unconstitutional. He contends that he is entitled to be re-sentenced because the error affected his substantial rights.

Plain error is the correct standard of review. United States v. Malveaux, 411 F.3d 558, 560 n. 9 (5th Cir.2005). To demonstrate plain error, Martinez has the burden of showing an error that is obvious and that affects his substantial rights. United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517). To show that the error affected his substantial rights, Martinez has the burden of demonstrating that “the sentencing judge — sentencing under an advisory scheme rather than a mandatory one — would have reached a significantly different result.” Id. at 521. Thus, because Martinez has not shown that the district court would have imposed a different sentence, he is not entitled to relief on authority of Booker. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).

Martinez also contends that 21 U.S.C. §§ 952 and 960(a) and (b) are unconstitutional in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Martinez acknowledges that his argument is foreclosed by this court’s precedent, but he seeks to preserve the issue for Supreme Court review. Martinez’s argument is foreclosed. See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.2000).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.