United States v. Villasenor

135 F. App'x 764

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 22, 2005

Charles R. Fulbruge III Clerk No. 04-41631 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LORENZO J. VILLASENOR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:04-CR-548-ALL --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Lorenzo J. Villasenor appeals the sentence imposed following

his guilty-plea conviction for possession with the intent to

distribute 66.25 kilograms of marijuana, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C). Finding no error, we

affirm.

Villasenor first argues that, in light of United States v.

Booker, 125 S. Ct. 738 (2005), the district court erred in

imposing a sentence utilizing the Sentencing Guidelines as

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41631 -2-

mandatory. As Villasenor did not preserve this issue, we review

only for plain error. See United States v. Mares, 402 F.3d 511,

520 (5th Cir. 2005), petition for cert. filed (Mar. 31, 2005)

(No. 04-9517); see also United States v. Malveaux, __F.3d__,

No. 03-41618, 2005 WL 1320362 (5th Cir. Apr. 11, 2005).

Application of the Guidelines as mandatory, even absent a Sixth

Amendment violation as is the case here, is plain or obvious

error after Booker. See United States v. Valenzuela-Quevedo, 407

F.3d 728, 733-34 (5th Cir. 2005). However, Villasenor cannot

show that the error affected his substantial rights because the

record does not indicate that the district court would have

imposed a lower sentence under an advisory, rather than a

mandatory, Guidelines scheme. See id.

Villasenor’s second argument, that 21 U.S.C. § 841 is

unconstitutional, is foreclosed by United States v. Slaughter,

238 F.3d 580 (5th Cir. 2000). Villasenor concedes this point,

but raises it to preserve the matter for further review.

AFFIRMED.