United States v. Torres-Avila

145 F. App'x 480

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 19, 2005
• Docket: 04-40527
• Status: Unpublished

Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed the judgment of conviction and sentence of Armando Torres-Avila (Torres); the Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). United States v. Torres-Avila, 115 Fed.Appx. 289 (5th Cir.2004) (unpublished); vacated by sub nom. de la Cruz-Gonzalez v. United States, — U.S. -, 125 S.Ct. 1995, — L.Ed.2d - (2005).

Torres argues that the district court erred by imposing a sentence pursuant to the mandatory federal sentencing guideline system that was held unconstitutional in Booker. Torres fails to meet his burden of showing that the district court’s sentence under guidelines it deemed mandatory affected his substantial rights such that his sentence amounts to plain error. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.2005).

Because nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case, we reinstate our judgment affirming Torres’s conviction and sentence.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.