United States v. DeLeon-Garcia , 143 F. App'x 588 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 5, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20316
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DeLEON-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CR-422-1)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE and PRADO Circuit Judges.
PER CURIAM:*
This court affirmed Jesus DeLeon-Garcia’s guilty-plea
conviction for illegally re-entering the United States, after
having been deported and convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2); and his sentence to,
inter alia, 56 months in prison. United States v. DeLeon-Garcia,
04-20316, 119 Fed. Appx. 605 (5th Cir. 23 December 2004)
(unpublished). The Supreme Court granted DeLeon-Garcia’s petition
*
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this opinion should not be published and is not precedent except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.
for writ of certiorari and for leave to proceed in forma pauperis;
vacated our previous judgment; and remanded the case for further
consideration in the light of United States v. Booker, 543 U.S.
___, 125 S. Ct. 738 (2005). DeLeon-Garcia v. United States, 125 S.
Ct. 1997 (2005). We requested, and received, supplemental briefs
addressing the impact of Booker. Having reconsidered our decision
pursuant to the Supreme Court’s instructions, we reinstate our
judgment affirming the conviction and sentence.
DeLeon-Garcia first raised Booker-error on direct appeal;
therefore, our review is only for plain error. See United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed, (U.S. 31 A.K. Marsh. 2005) (No. 04-9517). As DeLeon-Garcia
concedes, he cannot show “that the error ... affected the outcome
of the district court proceedings”. Id. at 521 (quotation
omitted). Accordingly, he fails the third prong of plain-error
review.
DeLeon-Garcia also contends: the district court committed
“structural error” when it sentenced him under a mandatory
guidelines system; therefore, prejudice to his substantial rights
should be presumed. He recognizes, however, that our court has
rejected this contention as inconsistent with Mares, see United
States v. Malveaux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), and
raises it only to preserve it for possible further review by the
Supreme Court.
2
AFFIRMED
3