United States v. Rubalcaba ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2006
Charles R. Fulbruge III
Clerk
No. 04-51341
c/w No. 04-51368
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL RUBALCABA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-713-ALL
USDC No. 3:04-CR-923-ALL-FM
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Gabriel Rubalcaba appeals the sentences he received after he
pleaded guilty to importing more than 100 kilograms of marijuana
with intent to distribute and to escape from a federal prison.
For the first time on appeal, Rubalcaba argues that his sentences
for both convictions should be vacated and his case remanded
under United States v. Booker, 543 U.S. 220 (2005), because the
district court treated the Guidelines as mandatory.
*
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this opinion should not be published and is not precedent except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. 04-51341
c/w No. 04-51368
-2-
In the marijuana case, Rubalcaba waived his right to appeal;
the Government however, does not seek its enforcement. See
United States v. Lang, 440 F.3d 212, 213 (5th Cir. 2006); United
States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
Because Rubalcaba raises his Booker argument for the first
time on appeal, we review only for plain error. See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th. Cir.),
cert. denied, 126 S. Ct. 267 (2005). Although the mandatory
application of the Sentencing Guidelines constitutes error that
is now clear in light of Booker, Rubalcaba has not shown that
this error affected his substantial rights. See id. That
Rubalcaba was sentenced at the lowest end of the guidelines range
does not indicate that his sentence would likely have been
different under advisory Guidelines. See United States v.
Bringier, 405 F.3d 310, 317-18 & n.4. (5th Cir.), cert. denied,
126 S. Ct. 264 (2005).
AFFIRMED.