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United States v. De La Cruz-Gonzalez , 155 F. App'x 801 ( 2005 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 November 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-40469
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO DE LA CRUZ-GONZALEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1644-ALL
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Rogelio de la Cruz-
Gonzalez.   United States v. de la Cruz-Gonzalez, No. 04-40469 (5th
Cir. Dec. 16, 2004) (unpublished).   The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker,
    125 S. Ct. 738
     (2005).
De la Cruz-Gonzalez contends that his sentence was imposed
illegally pursuant to a mandatory sentencing scheme.        See United
*
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opinion should not be published and is not precedent except under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. 04-40469
-2-
States v. Valenzuela-Quevedo,
    407 F.3d 728
    , 733 (5th Cir. 2005),
cert. denied, --- U.S. ----,
    126 S. Ct. 267
     (2005).                              Our review is
for plain error.          See United States v. Cruz,
    418 F.3d 481
    , 485 (5th
Cir. 2005).        To merit relief under the plain-error standard, de la
Cruz-Gonzalez          must     show     that     the     Booker      error     affected        his
substantial rights.**              See United States v. Mares,
    402 F.3d 511
    ,
520–21 (5th Cir. 2005), cert. denied, --- U.S. ----,
    126 S. Ct. 43
    (2005).      On the record before us, de la Cruz-Gonzalez cannot make
such a showing.           See United States v. Bringier,
    405 F.3d 310
    , 317
& n.4 (5th Cir. 2005), cert. denied, --- U.S. ----,
    126 S. Ct. 264
    (2005).
For reasons stated in this court’s original opinion, the
judgment of conviction is AFFIRMED.                      For reasons discussed above,
the judgment of sentence is AFFIRMED. As we determined previously,
the case is REMANDED to the district court so that the judgment may
be reformed to reflect the correct offense of conviction.                                       See
United States v. Powell,
    354 F.3d 362
    , 371-72 (5th Cir. 2003); FED.
R. CRIM. P. 36.
AFFIRMED and REMANDED.
**
De la Cruz-Gonzalez contends that he need not show that his substantial rights were affected
because the error was structural or presumptively prejudicial. He concedes that this argument is
foreclosed but states that he wishes to preserve the issue for further review. See United States v.
Martinez-Lugo,
    411 F.3d 597
    , 601 (5th Cir. 2005), cert. denied, --- U.S. ----,
    126 S. Ct. 464
     (2005);
United States v. Malveaux,
    411 F.3d 558
    , 560 n.9 (5th Cir. 2005),
cert. denied, --- U.S. ----,
    126 S. Ct. 194
     (2005).