United States v. Santana

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2005

Charles R. Fulbruge III Clerk No. 04-50992 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

ENRIQUE GONZALEZ SANTANA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 5:03-CR-468-3 --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Enrique Gonzalez Santana pleaded guilty to conspiring to

distribute, possessing with intent to distribute, and aiding and

abetting in the possession with intent to distribute more than

100 kilograms but less that 1,000 kilograms of marijuana, in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 846.

Santana argues that the district court committed error under

United States v. Booker, 125 S. Ct. 738 (2005), because it

engaged in impermissible judicial fact finding when it enhanced

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50992 -2-

his sentence based on a determination that Santana exercised a

leadership role in the offense.

Santana did not object on this basis below and therefore

this court’s review is for plain error. United States v. Mares,

402 F.3d 511, 513 (5th Cir. 2005), petition for cert. filed (U.S.

Mar. 31, 2005) (No. 04-9517). Based on the offense charged in

Santana’s indictment and admitted by Santana during his guilty

plea, Santana was subject to a five year mandatory minimum

sentence. See 21 U.S.C. § 841(b)(1)(B)(vii). Santana fails to

explain why application of the statutorily mandated minimum

sentence should be considered error under Booker. Moreover,

although Santana argues that, but for the district court’s

determination of leadership role, he would have been eligible for

sentencing pursuant to the lower sentencing range provided by the

United States Sentencing Guidelines through the safety valve

relief of 18 U.S.C. § 3553(f), Santana does not discuss the

remaining safety valve requirements. See 18 U.S.C. § 3553(f).

He thus does not meet his burden of proving safety valve

eligibility. See United States v. Flanagan, 80 F.3d 143, 146-47

(5th Cir. 1996). Therefore, the district court was bound by the

mandatory minimum sentence set forth in 21 U.S.C.

§ 841(b)(1)(B)(vii). See United States v. Phillips, 382 F.3d

489, 498-99 (5th Cir. 2004).

For the foregoing reasons, the judgment of the district

court is AFFIRMED.