United States v. Abrego ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 05-50013
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHANIE ABREGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-450-1
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:1
Stephanie Abrego pleaded guilty to an indictment charging
her with conspiracy to possess with intent to distribute more
than 50 kilograms of marijuana. Abrego was sentenced at the
bottom of the guideline imprisonment range to a 33-month term of
imprisonment and to a three-year period of supervised release.
She was ordered to pay a $1,000 fine. Abrego gave timely notice
of her appeal.
1
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this opinion should not be published and is not precedent except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. 05-50013
-2-
Abrego contends that her sentence should be vacated because
it was imposed pursuant to an unconstitutional mandatory
guidelines system, contrary to United States v. Booker,
125 S. Ct. 738, 768–69 (2005), a so-called Fanfan error. See
United States v. Martinez-Lugo, 411 F.3d 597, 600 (5th Cir.
2005), cert. denied, ___ S. Ct. ___ (Oct. 11, 2005) (No. 05-
6242). This court’s review is for plain error. See id.; United
States v. Mares, 402 F.3d 511, 520–21 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005).
Abrego cannot carry her burden of showing that the
Fanfan error affected her sentence. See Martinez-Lugo, 411 F.3d
at 600. There is nothing in the record to suggest that the
district court felt constrained by the mandatory guidelines in
imposing Abrego’s sentence. See Mares, 402 F.3d at 522; see also
United States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.)
(minimum guideline sentence, without more, insufficient to carry
third prong of plain-error test), cert. denied, 126 S. Ct. 264
(2005). The judgment is AFFIRMED.