United States v. Jimenez-Velasco , 166 F. App'x 130 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 6, 2006
Charles R. Fulbruge III
No. 02-41696 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUAN JIMENEZ-VELASCO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-509-ALL
--------------------
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
This court affirmed the conviction and sentence of Juan
Jimenez-Velasco. United States v. Jimenez-Velasco, No. 02-41696
(5th Cir. Feb. 19, 2004). In Jiminez-Velasco v. United States,
125 S. Ct. 1110 (2005), the Supreme Court granted Jiminez-
Velasco’s petition for a rehearing of the denial of his writ of
certiorari, vacated its previous order denying his petition for a
writ of certiorari, vacated our opinion affirming Jimenez-
Velasco’s conviction and sentence, and remanded the case to this
*
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this opinion should not be published and is not precedent except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. 02-41696
-2-
court for further consideration in light of United States v.
Booker, 125 S. Ct. 738 (2005). We requested and received
supplemental letter briefs addressing the impact of Booker.
Jimenez-Velasco argues that the district court erred in
sentencing him pursuant to the mandatory United States Sentencing
Guidelines scheme held unconstitutional in Booker, because his
sentence was based upon drug amounts not found by a jury or
admitted by him. He did not raise this issue in district court.
Therefore, we review only for plain error, and Jimenez-Velasco
fails to demonstrate that the district court would have reached a
significantly different result under an advisory guidelines
scheme. See United States v. Mares, 402 F.3d 511, 520-22 (5th
Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No. 04-
9517); see also United States v. Taylor, 409 F.3d 675, 676-77
(5th Cir. 2005). Moreover, this court has rejected his argument
that a Booker error is a structural error or that such error is
presumed to be prejudicial. See Mares, 402 F.3d at 520-22; see
also United States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.
2005), petition for cert. filed (July 11, 2005) (No. 05-5297).
Because nothing in the Supreme Court’s Booker decision
requires us to change our prior affirmance in this case, we
reinstate our judgment affirming Jimenez-Velasco’s conviction and
sentence.
AFFIRMED.