United States v. Marcenko , 160 F. App'x 374 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-20484
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN PAUL MARCENKO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-90-7
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
Stephen Paul Marcenko appeals the sentence imposed following
his guilty-plea conviction for fraud in connection with
identification documents in violation of 18 U.S.C. § 1028(a)(1). He
argues that, in light of United States v. Booker, 125 S. Ct. 738(2005), the district court plainly erred in sentencing him under a
mandatory guidelines system.
After Booker, it is clear that application of the federal
sentencing guidelines in their mandatory form constitutes error
*
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this opinion should not be published and is not precedent except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. 04-20484
-2-
that is plain. See United States v. Valenzuela-Quevedo, 407 F.3d
728, 732-33 (5th Cir.), cert. denied, 126 S. Ct. 267 (2005).
Marcenko’s contention that this error is structural and gives rise
to a presumption of prejudice is unavailing. See United States v.
Malveaux, 411 F.3d 558 (5th Cir.), cert. denied, 126
S. Ct. 194 (2005). He must show that the error affected his
substantial rights, and he has not done so. See
Valenzuela-Quevedo, 407 F.3d at 733-34. The judgment of the
district court is therefore AFFIRMED.