United States v. Gonzalez-Orozco , 161 F. App'x 426 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 10, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-40390
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE HIPOLITO GONZALEZ-OROZCO,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-922-ALL
_________________________________________________________________
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
This court affirmed Jose Hipolito Gonzalez-Orozco’s conviction
and sentence. United States v. Gonzalez-Orozco, 110 Fed. Appx. 471(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). Gonzalez-Orozco v. United States, 125 S.Ct.
1368 (2005). We requested and received supplemental letter briefs
addressing the impact of 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this opinion should not be published and is not precedent except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.
In his supplemental brief, Gonzalez-Orozco argues that the
district court’s application of mandatory sentencing guidelines was
reversible plain error. See United States v. Mares, 402 F.3d 511,
520 (5th Cir.) (Booker arguments made for first time on direct
appeal reviewed for plain error), cert. denied, 126 S.Ct. 43(2005). There is no plain error because, as Gonzalez-Orozco
concedes, there is no evidence in the record indicating that the
district court would have imposed a lesser sentence under advisory
sentencing guidelines. See United States v. Infante, 404 F.3d 376,
394-95 (5th Cir. 2005) (to satisfy third prong of plain error test
-- that error in question affected defendant’s substantial rights
-- defendant 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”).
Alternatively, Gonzalez-Orozco contends 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. As he acknowledges, these arguments are foreclosed by
this court’s decision in Mares.
Finally, Gonzalez-Orozco contends that the Booker error was
structural and that prejudice should be presumed. This contention
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is also foreclosed by Mares. See United States v. Martinez-Lugo,
411 F.3d 597, 601 (5th Cir.), cert. denied, 126 S.Ct. 464 (2005);
United States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir.), cert.
denied, 126 S.Ct. 194 (2005).
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 Gonzalez-Orozco’s conviction and sentence.
JUDGMENT REINSTATED.
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