United States v. Perez-Tostado

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 4, 2006
Charles R. Fulbruge III
Clerk
No. 04-40686
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS PEREZ-TOSTADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-894-ALL
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the conviction and sentence of Carlos
Perez-Tostado. United States v. Perez-Tostado, No. 04-40686 (5th
Cir. Dec. 17, 2004) (unpublished). The Supreme Court vacated and
remanded for further consideration in light of United States v.
Booker, 543 U.S. 220 (2005). See de la Cruz-Gonzalez v. United
States, 125 S. Ct. 1995 (2005). This court requested and
*
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this opinion should not be published and is not precedent except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. 04-40686
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received supplemental letter briefs addressing the impact of
Booker.
In his supplemental letter brief, Perez-Tostado contends
that the district court committed reversible plain error when it
sentenced him pursuant to the mandatory United States Sentencing
Guidelines held unconstitutional in Booker. He also argues that
his Booker claim is not precluded by the terms of the appellate-
waiver provision in his plea agreement. Because Perez-Tostado
cannot prevail on his Booker claim, a ruling on the
enforceability of his appeal waiver is pretermitted.
The district court erred when it sentenced Perez-Tostado
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). By
challenging his sentence under Blakely v. Washington, 542 U.S.
296 (2004), on direct appeal, Perez-Tostado has sufficiently
preserved Fanfan error 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). 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 (5th Cir.),
cert. denied, 126 S. Ct. 464 (2005); United States v. Malveaux,
No. 04-40686
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411 F.3d 558, 560 n.9 (5th Cir.), cert. denied, 126 S. Ct. 194
(2005).
Perez-Tostado has failed to point to any statements in the
record indicating that the same sentence would not have been
imposed had the district court known that the Guidelines were
advisory. The record itself gives no indication that the
district court would have reached a different result under an
advisory guidelines system. Further, the fact that Perez-Tostado
was sentenced at the lowest end of the guideline range does not
demonstrate that the district court would have reached a
different conclusion under an advisory sentencing scheme. See
United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir.),
cert. denied, 126 S. Ct. 264 (2005). Given the lack of any
indication in the record that the district court would have
reached a different conclusion, Perez-Tostado 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.
In his original appeal to this court, Perez-Tostado argued
that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) were unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). As this court previously held,
this issue is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). See also United States v. Garza-Lopez,
410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298
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(2005). Booker did not overrule Almendarez-Torres. See Booker,
543 U.S. at 244.
Booker does not require this court to change the prior
affirmance in Perez-Tostado’s case. Accordingly, we REINSTATE
our judgment affirming Perez-Tostado’s conviction and sentence.
AFFIRMED.