United States v. Oscar , 152 F. App'x 425 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-21004
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOYD OSCAR,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-225-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Floyd Oscar appeals the 27-month sentence imposed following
entry of his guilty plea to a charge of knowingly entering into
a marriage for the purpose of evading a provision of the
immigration laws. Oscar argues, for the first time on appeal,
that the district court erred under United States v. Booker,
125 S. Ct. 738 (2005), in sentencing him pursuant to a mandatory
application of the Sentencing Guidelines.
*
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this opinion should not be published and is not precedent except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. 04-21004
-2-
Oscar contends the issue should be reviewed de novo because
Booker had not been decided at the time of his sentencing and
an objection would have been futile. However, as Oscar
acknowledges, this court reviews the issue for plain error.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005).
In order to establish plain error, Oscar must establish that
(1) there is an error; (2) that is clear or obvious; and (3) that
affects his substantial rights. United States v. Olano, 507 U.S.
725, 732-34 (1993). If these criteria are met, this court has
the authority to correct the error, but is not required to do so.
Id. at 736.
Oscar contends that the district court’s error was
“structural” and that prejudice should therefore be presumed.
This argument, however, is foreclosed by United States v.
Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126
S. Ct. 194 (2005).
Oscar must demonstrate that the error affected his
substantial rights, Valenzuela-Quevedo, 407 F.3d at 733-34, and
he concedes that he cannot make such a showing based on the
record. Because Oscar has failed to establish plain error, we
affirm his sentence.
AFFIRMED.