United States v. Varela-Medina

161 F. App'x 382

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS January 25, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-40045 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

GEORGE ALBERTO VARELA-MEDINA,

Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

In our previous opinion in this case, we affirmed Defendant-

Appellant Varela-Medina’s conviction and sentence, and found no

error in interpretation or application of the Sentencing

Guidelines. See United States v. Varela-Medina, No. 04-40045, 117

Fed. Appx. 960 (5th Cir. 2004)(unpublished). Following our

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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

-1- judgment, Varela-Medina filed a petition for certiorari. The

Supreme Court granted Varela-Medina’s petition for certiorari,

vacated our judgment, and remanded the case to this court for

further consideration in light of United States v. Booker, 125 S.

Ct. 738 (2005). We now reconsider the matter in light of Booker

and decide to reinstate our previous judgment affirming Varela-

Medina’s conviction and sentence.

Appellant raised a Booker-related objection for the first time

on direct appeal. Because Varela-Medina did not raise a Booker

objection in trial court, however, the claim would fail under the

plain-error test discussed in United States v. Mares, 402 F.3d 511,

520-22 (5th Cir. 2005). The district court sentenced Varela-Medina

at the bottom of the Guideline range but gave no indication that it

would have imposed a lesser sentence had the Guidelines been

advisory. See United States v. Bringier, 405 F.3d 310 (5th Cir.

2005).

Varela-Medina also asks us to reconsider our earlier

conclusion that the trial court did not plainly err in imposing the

2L1.2(b)(1)(B) enhancement under the Sentencing Guidelines. We

fully considered Varela-Medina’s argument in his first appeal and

decline to reconsider it.

For the reasons stated above, our prior disposition remains in

effect, and we REINSTATE OUR EARLIER JUDGMENT affirming Varela-

-2-