United States v. Bazan

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 26, 2007
Charles R. Fulbruge III
Clerk
No. 04-40399
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON BAZAN, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-230-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the conviction and sentence of Ramon
Bazan, III. United States v. Bazan, No. 04-40399 (5th Cir.
Dec. 2, 2004) (unpublished). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 543 U.S. 220 (2005). Bazan v. United States, 126 S. Ct.
2860 (2006). This court 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this opinion should not be published and is not precedent except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.
No. 04-40399
-2-
In his supplemental letter brief, Bazan contends that the
district court violated his Sixth Amendment right to a jury trial
when it enhanced his sentence based on facts that were neither
admitted by him nor found by a jury beyond a reasonable doubt.
He acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
seeks to preserve the issue for further review.
Bazan also contends that the district court committed
reversible plain error when it sentenced him pursuant to the
mandatory Sentencing Guidelines held unconstitutional in Booker.
By challenging his sentence under Blakely v. Washington, 542 U.S.
296 (2004), on direct appeal, Bazan has sufficiently preserved
this issue for review on remand from the Supreme Court.
See United States v. Cruz, 418 F.3d 481, 484 (5th Cir.),
cert. denied, 126 S. Ct. 770 (2005).
The district court erred when it sentenced Bazan pursuant to
the mandatory guidelines system held unconstitutional in Booker.
See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th
Cir.), cert. denied, 126 S. Ct. 267 (2005). A Fanfan error is
neither structural nor presumptively prejudicial and, instead, is
subject to the plain error analysis set forth in United States v.
Mares, 402 F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43(2005). See United States v. Martinez-Lugo, 411 F.3d 597, 601
No. 04-40399
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(5th Cir.), cert. denied, 126 S. Ct. 464 (2005); United States v.
Malveaux, 411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S.
Ct. 194 (2005).
Bazan has not demonstrated that the district court’s error
affected his substantial rights. Although Bazan argues that the
district court could have imposed a lower sentence based on the
age of the convictions used to apply the armed career criminal
enhancement, as he acknowledges, the district court made no
remarks indicating that it would have imposed a different
sentence under an advisory guidelines system. In fact, the
district court rejected Bazan’s request that he be sentenced at
the bottom of the guideline range. Given the lack of evidence
indicating that the district court would have reached a different
conclusion, Bazan has not demonstrated that his substantial
rights were affected, and, thus, he has failed to establish plain
error. See Mares, 402 F.3d at 520-22.
Booker does not require this court to change the prior
affirmance in Bazan’s case. Accordingly, we REINSTATE our
judgment affirming Bazan’s conviction and sentence.
AFFIRMED.