United States v. Ponce , 169 F. App'x 906 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-41628
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO PONCE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-621-1
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Ramiro Ponce appeals his conviction and sentence following
his guilty plea to importing cocaine. Ponce argues for the first
time on appeal that his sentence is unconstitutional under United
States v. Booker, 543 U.S. 220 (2005), because it was imposed
pursuant to a mandatory application of the Sentencing Guidelines.
This court reviews forfeited Booker errors for plain error.
United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005). Thus, Ponce must
*
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this opinion should not be published and is not precedent except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. 04-41628
-2-
demonstrate (1) error, (2) that is plain, and (3) that affects
his substantial rights. Id. at 732. If the first three
conditions are met, the court will reverse only if it finds that
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 733.
Ponce has established obvious error because he was sentenced
under a mandatory guidelines regime. See id. To establish the
third prong of plain error, however, Ponce must “point to
statements in the record by the sentencing judge demonstrating a
likelihood that the judge sentencing under an advisory scheme
rather than a mandatory one would have reached a significantly
different result.” United States v. Pennell, 409 F.3d 240, 245
(5th Cir. 2005).
Ponce’s argument that the error affected his substantial
rights because it is structural, or at least presumptively
prejudicial, has been rejected as inconsistent with this court’s
analysis in United States v. Mares, 402 F.3d 511 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005). See United States v.
Malveaux, 411 F.3d 558, 560-61 n.9 (5th Cir.), cert. denied, 126
S. Ct. 194 (2005). Ponce fails to show that the error otherwise
affected his substantial rights given that he points to
statements by the district court that were merely sympathetic and
not an indication that the district court wished to impose a
different sentence under Guidelines that were not mandatory. See
No. 04-41628
-3-
United States v. Creech, 408 F.3d 264, 272 (5th Cir.), cert.
denied, 126 S. Ct. 777 (2005).
Ponce’s argument, raised for the first time on appeal, that
21 U.S.C. §§ 952 and 960(a) and (b) are facially unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because drug
quantity is an element of the offense that must be presented to
the trier of fact is foreclosed by this court’s precedent. See
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
AFFIRMED.