eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2005-07

United States v. Vazquez , 140 F. App'x 537 ( 2005 )


Menu:
 
  •                                                               United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit                      July 22, 2005
Charles R. Fulbruge III
Clerk
No. 03-30968
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STEPHEN LEE VAZQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(03-CV-50023)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On January 24, 2005, the Supreme Court granted Vazquez’s
petition for a writ of certiorari, vacated the prior judgment of
this    court,   and     remanded   this     appeal   to   this    court    for
“consideration in light of United States v. Booker, 543 U.S.___ [,
    125 S. Ct. 738
    ] (2005).”      In its remand order the Supreme Court did
not specify which of the two majority opinions set forth in Booker
*
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opinion should not be published and is not precedent except under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.
was the basis for its remand decision.           The Supreme Court did make
clear in its Booker decision that both opinions would be applicable
to all cases pending on direct review or not yet final as of
January 12, 2005.        See
    Booker, 125 S. Ct. at 769 
    (citing Griffith
v. Kentucky,
    479 U.S. 314
    , 328 (1987)). Vazquez’s appeal satisfies
those conditions.
Vazquez pleaded guilty to conspiring to possess with intent to
distribute 50 grams or more of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846.       In his original appeal to this court,
Vazquez claimed that his sentence exceeded the maximum sentence
provided    by     the    sentencing       guidelines   for     the   type     of
methamphetamine charged in his indictment in violation of Apprendi
v. New Jersey,
    530 U.S. 466 
    (2000).            Nothing in Booker addresses
this claim of error, and Vazquez failed to object in the district
court on either of the grounds addressed in Booker: (1) a Sixth
Amendment violation resulting from an enhancement of a sentence
based on facts (other than a prior conviction) found by the
sentencing judge, which were not admitted by the defendant or found
by   the   jury;    or    (2)   that   the    Sentencing      Guidelines     were
unconstitutional because they were mandatory and not advisory.
Consequently, we review for plain error.            United States v. Gore,
    298 F.3d 322
    , 324 (5th Cir. 2002).           Because the district court did
not enhance Vazquez’s sentence on the basis of any facts found
solely by the court, we conclude that Booker’s Sixth Amendment
holding is not applicable to this case.
2
However, under the Booker holding that the Guidelines are to
be advisory and not mandatory, there is error in this case because
the district court viewed and acted under the Sentencing Guidelines
as mandatory and not discretionary. See
    Booker, 125 S. Ct. at 769
    ;
United States v. Valenzuela-Quevedo,
    407 F.3d 728
    , 733 (5th Cir.
2005).   Applying our plain error analysis, we conclude: (1) there
was error because the district court operated under a mandatory
scheme and not an advisory scheme; and (2) such error is now plain
under Johnson v. United States,
    520 U.S. 461
    , 468 (1997) (holding
it is enough that error be plain at the time of appellate review).
However, under the third prong of our plain error methodology,
i.e., whether the error affects substantial rights, it is Vazquez’s
burden to show that, but for the error of acting on the premise
that the Guidelines are mandatory and not advisory, the district
court would have made a different decision.
    Valenzuela-Quevedo, 407 F.3d at 733
    .
In United States v. Mares,
    402 F.3d 511 
    (5th Cir. 2005), we
said that “the pertinent question is whether [the defendant]
demonstrated that the sentencing judge — sentencing under an
advisory scheme rather than a mandatory one — would have reached a
significantly different result.”
    Id. at 521. 
      That is, the plain
error standard places the burden of proof on the defendant and
requires “‘the defendant to show that the error actually did make
a difference:   if it is equally plausible that the error worked in
favor of the defense, the defendant loses; if the effect of the
3
error is uncertain so that we do not know which, if either, side it
helped the defendant loses.’”
    Id. (quoting United 
    States v.
Rodriguez,
    398 F.3d 1291
    , 1300 (11th Cir. 2005)).
The applicable sentencing range under the Guidelines in this
case, as determined by the presentence investigation report, was 97
to 121 months.   Section 841(b)(1)(A) provides that a person found
guilty of violating subsection (a) is subject to a mandatory
minimum sentence of ten years’ imprisonment.     The district court
judge sentenced Vazquez to this mandatory minimum. Therefore, even
if given the opportunity to treat the Guidelines as discretionary
only, the district court was nevertheless bound by statute to have
imposed at least the same sentence it did.          Accordingly, we
determine that Vazquez cannot satisfy the third prong of our plain
error analysis, i.e., that the sentence imposed by the district
court violated his substantial rights.
We conclude, therefore, that nothing in the Supreme Court’s
Booker decision requires us to change our prior affirmance in this
case.   We therefore AFFIRM the conviction and sentence as set by
the district court.
AFFIRMED.
4