United States v. Rivera-Mendez

141 F. App'x 355

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 17, 2005

Charles R. Fulbruge III Clerk No. 04-41577 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO RIVERA-MENDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-503-1 --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Roberto Rivera-Mendez appeals his guilty-plea conviction and

sentence for illegal reentry following deportation. Rivera-

Mendez contends that his sentence is invalid in light of United

States v. Booker, 125 S. Ct. 738 (2005), because the sentencing

judge applied the sentencing guidelines as if they were

mandatory. We review for plain error. United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732 (5th Cir. 2005), petition

for cert. filed (July 25, 2005) (No. 05-5556); United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41577 -2-

Malveaux, 411 F.3d 588, 560 (5th Cir. 2005), petition for cert.

filed (July 11, 2005) (No. 05-5297). To prevail under a plain

error analysis, Rivera-Mendez must show an error that is plain

and that affects his substantial rights. United States v. Mares,

402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed

(Mar. 31, 2005)(No. 04-9517).

To demonstrate that the plain error affected his substantial

rights, Rivera-Mendez has the burden of showing that the error

“affected the outcome of the district court proceedings.”

Valenzuela-Quevedo, 407 F.3d at 733 (internal quotations and

citation omitted). He 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.

As Rivera-Mendez concedes, he cannot show prejudice as there

is nothing in the record to suggest that his sentence would have

been any less had the court applied the sentencing guidelines as

advisory rather than mandatory. See Valenzuela-Quevedo, 407 F.3d

at 733-34. He thus fails to establish prejudice to his

substantial rights. The judgment of the district court is

AFFIRMED.