United States v. Cruz-Perez , 164 F. App'x 525 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 27, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20011
Conference Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCO ANTONIO CRUZ-PEREZ,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:03-CR-171-1
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, Chief Judge, JOLLY and WIENER, Circuit Judges.
PER CURIAM:1
This court affirmed Marco Antonio Cruz-Perez’s conviction and
sentence. United States v. Cruz-Perez, 110 Fed. Appx. 457 (5th
Cir. 2004). The Supreme Court vacated and remanded for further
consideration in the light of United States v. Booker, 125 S.Ct.
738 (2005). Cruz-Perez v. United States, 125 S.Ct. 1613 (2005).
We requested and received supplemental letter briefs addressing the
impact of Booker.
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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this opinion should not be published and is not precedent except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.
In his supplemental brief, Cruz-Perez argues that the district
court erred by sentencing him under a mandatory sentencing
guidelines range greater than the range authorized solely by his
own admissions, based upon the district court’s findings made by
only a preponderance of the evidence.2 Cruz-Perez concedes that he
did not raise a Booker claim on direct appeal, but instead did so
for the first time in his petition for writ of certiorari. This
court has held that, in the absence of extraordinary circumstances,
the court will not consider Booker-related arguments raised for the
first time in a petition for a writ of certiorari. United States
v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
Because Cruz-Perez did not raise his Booker-related arguments
in the district court, we would have reviewed them for plain error
had he raised them for the first time on direct appeal. United
States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126
S.Ct. 43 (2005). Under the plain error standard, we may correct an
error in Cruz-Perez’s sentence only if he demonstrates that “there
2
Cruz-Perez acknowledges that the following contentions are
foreclosed by our precedent, but raises them to preserve them for
further review by the Supreme Court: (1) that application of the
plain error standard is inappropriate because it would have been
futile for him to have objected to application of the mandatory
guidelines in the light of Fifth Circuit precedent existing at the
time of his sentencing, or because the remedial portion of Booker
was novel and unforeseeable at the time of his sentencing; (2) that
the Booker error was structural or presumptively prejudicial; (3)
that this court’s standard of review for plain error applied in
Mares and United States v. Bringier, 405 F.3d 310 (5th Cir.), cert.
denied, 126 S.Ct. 264 (2005), is inconsistent with (because it is
more stringent than) the reasonable probability standard announced
in United States v. Dominguez-Benitez, 124 S.Ct. 2333 (2004).
2
is (1) error, (2) that is plain, and (3) that affects substantial
rights. If all three conditions are met an appellate court may
then exercise its discretion to notice a forfeited error but only
if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal
citations and quotation marks omitted). The first two prongs are
satisfied here, because Cruz-Perez was sentenced pursuant to a
mandatory sentencing guidelines range based on facts found by the
judge but not admitted by him. See United States v. Creech, 408
F.3d 264, 271-72 (5th Cir. 2005).
To satisfy the third prong of the plain error test, Cruz-Perez
must show, “with a probability sufficient to undermine confidence
in the outcome, that if the judge had sentenced him under an
advisory sentencing regime rather than a mandatory one, he would
have received a lesser sentence.” United States v. Infante, 404
F.3d 376, 394-95 (5th Cir. 2005). Cruz-Perez argues that the
Booker errors affected his substantial rights because he was
sentenced on the basis of a Guidelines range that exceeded the
Guidelines range supported by his admissions, in violation of his
due process and Sixth Amendment rights. He contends that Booker’s
remedial holding (striking the statutory provisions making the
Sentencing Guidelines mandatory) cannot, consistently with due
process, be applied retroactively against him, because to do so
would violate his Sixth Amendment right to be sentenced only on the
basis of the facts admitted in his guilty plea. This contention is
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foreclosed by Booker. See United States v. Scroggins, 411 F.3d
572, 576 (5th Cir. 2005) (rejecting a similar argument and holding
that both the Sixth Amendment holding of Booker and its remedial
interpretation of the Sentencing Act apply to all cases on direct
review).
Cruz-Perez also contends that his substantial rights were
affected because there is a reasonable probability that, but for
the error of believing that the Guidelines were mandatory, the
district court would have imposed a lower sentence. He asserts
that the sentence imposed was directly linked to the Sixth
Amendment flaw in the calculation of the imprisonment range, and
the imprisonment range thus should have been lower.
Cruz-Perez has not demonstrated that his substantial rights
were affected. He has not pointed to anything in the record to
indicate that there is a reasonable probability that the district
court would have imposed a lesser sentence under advisory
guidelines. Because Cruz-Perez has not shown plain error, he
cannot satisfy “the much more demanding standard for extraordinary
circumstances, warranting review of an issue raised for the first
time in a petition for certiorari”. Taylor, 409 F.3d at 677.
For the foregoing reasons, we conclude that nothing in the
Supreme Court’s Booker decision requires us to change our prior
affirmance in this case. We therefore reinstate our judgment
affirming Cruz-Perez’s conviction and sentence.
JUDGMENT REINSTATED.
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