United States v. Vaca-Hernandez

144 F. App'x 438

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 4, 2005
• Docket: 04-40155
• Status: Unpublished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 Miguel Vaca-Hernandez. United States v. Vaca-Hernandez, 115 Fed. Appx. 706, 707 (5th Cir.2004) (unpublished). 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). See de la Cruz-Gonzalez v. United States, — U.S.-, 125 S.Ct. 1995, — L.Ed.2d- (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

Vaca-Hernandez argues that he is entitled to resentencing because the district court sentenced him under a mandatory application of the sentencing guidelines prohibited by Booker. However, he identifies “no evidence in the record suggesting that the district court would have imposed a lesser sentence under an advisory guidelines system.” United States v. Taylor, 409 F.3d 675, 677 (5th Cir.2005).

Vaca-Hernandez concedes that he cannot make the necessary showing of plain error that is required by our precedent. Furthermore, he correctly acknowledges that this court has rejected the argument that a Booker error is a structural error or that such error is presumed to be prejudicial. See United States v. Mares, 402 F.3d 511, 520-22 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517); see also United States v. Malveaux, 411 F.3d 558, 561 n. 9 (5th Cir.2005), petition for cert. filed (July 11, 2005) (No. 05-5297). He desires to preserve this argument for further review.

Because nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case, we therefore reinstate our judgment affirming VacaHernandez’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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.