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United States v. Bernal-Isler ( 2005 )


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  •                                                         United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-40731
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ENRIQUE BERNAL-ISLER,
also known as Jose Enrique Bernal,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1051-1
--------------------
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 sentence of Martin Enrique Bernal-
Isler (“Bernal”).   See United States v. Bernal-Isler, 115 Fed.
Appx. 736 (5th Cir. 2004) (per curiam).    The Supreme Court
vacated and remanded for further consideration in light of United
States v. Booker,
    125 S. Ct. 738 
    (2005).      See Bernal-Isler v.
United States,
    125 S. Ct. 1960 
    (2005).    This court 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this opinion should not be published and is not precedent except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. 04-40731
-2-
received supplemental letter briefs addressing the impact of
Booker.
Bernal argues that the district court erred in sentencing
him pursuant to a mandatory application of the sentencing
guidelines.    He concedes that he did not object to his sentence
in the district court under Blakely v. Washington,
    124 S. Ct. 2531 
    (2004), or under Booker, and that his failure to make an
objection of that type results in review for plain error.
Under the plain-error standard, the defendant bears the
burden of showing that (1) there is an error, (2) the error is
plain, and (3) the error affects substantial rights.     See United
States v. Olano,
    507 U.S. 725
    , 732 (1993).    If these conditions
are satisfied, this court may exercise its discretion to correct
the error only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.”
    Id. at 736 
    (internal quotation marks and citation omitted).
To satisfy the third prong of the plain error test in light
of Booker, a defendant must demonstrate “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
    , 395 (5th Cir.
2005).    Absent any indication in the record that the district
court would have imposed a lower sentence, a defendant does not
No. 04-40731
-3-
meet this burden.    See United States v. Martinez-Lugo,
    411 F.3d 597
    , 600-01 (5th Cir. 2005).
Bernal concedes that he cannot demonstrate that the district
court would have imposed a different sentence under an advisory
guideline scheme.    See
    id. Bernal nevertheless 
    contends that the
error committed by the district court is structural or
presumptively prejudicial.      Bernal concedes that this argument is
foreclosed.    See United States v. Malveaux,
    411 F.3d 558
    , 560 n.9
(5th Cir. 2005), petition for cert. filed (July 11, 2005)(No. 05-
5297).    Accordingly, Bernal has not met his burden of
establishing that his substantial rights were affected under the
third prong of the plain error test.      See
    Martinez-Lugo, 411 F.3d at 601
    .
AFFIRMED.