United States v. Rosales , 144 F. App'x 409 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-40162
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO ARTURO ROSALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1379-1
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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 judgment of conviction and sentence
of Sergio Arturo Rosales. United States v. Rosales, No. 04-40162
(5th Cir. Dec. 17, 2004) (unpublished). The Supreme Court
vacated and remanded for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). See De La Cruz-Gonzalez
v. United States, 125 S. Ct. 1995 (2005). We requested and
*
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this opinion should not be published and is not precedent except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. 04-40162
-2-
received supplemental letter briefs addressing the impact of
Booker.
Rosales argues that he is entitled to resentencing because
the district court sentenced him under a mandatory application of
the United States Sentencing Guidelines prohibited by Booker.
However, he identifies “no evidence in the record suggesting that
the district court would have imposed a lesser sentence under an
advisory guidelines system.” United States v. Taylor, 409 F.3d
675, 677 (5th Cir. 2005).
Rosales concedes that he cannot make the necessary showing
of plain error that is required by our precedent. Furthermore,
he correctly acknowledges that this court has rejected the
argument that a Booker error is a structural error or that such
error is presumed to be prejudicial. See United States v. Mares,
402 F.3d 511, 520-22 (5th Cir. 2005), petition for cert. filed
(Mar. 31, 2005) (No. 04-9517); see also United States v.
Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition for
cert. filed (July 11, 2005) (No. 5297). He desires to preserve
this argument for further review.
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
therefore reinstate our judgment affirming Rosales’s conviction
and sentence.
AFFIRMED.