United States v. Rodriguez-Zuniga

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 15, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-40575
Conference Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO RODRIGUEZ-ZUNIGA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1149-1
_________________________________________________________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES and WIENER, Circuit Judges.
PER CURIAM:*
This court affirmed the judgment of conviction and
sentence of Armando Rodriguez-Zuniga. United States v. Rodriguez-
Zuniga, No. 04-40571 (5th Cir. Oct. 21, 2004). The Supreme Court
vacated and remanded for further consideration in light of United
States v. Booker, 125 S. Ct. 738 (2005). See Gonzalez-Orozco v.
United States, 125 S. Ct. 1368 (2005). We 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should not be published and is not precedent except under the limited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.
In his original appeal to this court, Rodriguez-Zuniga
made a Blakely objection to his sentencing. Because Rodriguez-
Zuniga did not make this argument at the district court, we review
for plain error. See United States v. Cruz, 418 F.3d 481, 484 (5th
Cir. 2005).
Under the Booker holding that changes the Guidelines from
mandatory to advisory, there is error in this case because the
district court viewed and acted under the Sentencing Guidelines as
mandatory and not discretionary. Rodriguez-Zuniga, however,
identifies no evidence in the record suggesting that the district
court “would have reached a significantly different result” under
an advisory scheme rather than a mandatory one. United States v.
Mares, 402 F.3d 511, 521 (5th Cir. 2005), cert. denied, 126 S. Ct.
43 (2005). Accordingly, Rodriguez-Zuniga cannot make the necessary
showing of plain error that is required by our precedent. See
United States v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005)
(comments that sentence was “harsh” are insufficient to demonstrate
that defendant’s substantial rights were affected), cert. denied,
126 S. Ct. 264 (2005); United States v. Creech, 408 F.3d 264, 272
(5th Cir. 2005) (“[M]ere sympathy ... is not indicative of a
judge’s desire to sentence differently under a non-mandatory
Guidelines regime.”); United States v. Hernandez-Gonzalez, 405 F.3d
260, 262 (5th Cir. 2005) (sentence at the bottom of the Guideline
range and potential mitigating factors do not raise a reasonable
probability of a different sentence), cert. denied, 126 S. Ct. 2022
(2005).
Furthermore, Rodriguez-Zuniga correctly acknowledges that
this court has rejected the 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, 561 n.9 (5th Cir. 2005), cert. denied, 124 S. Ct. 194(2005). He desires to preserve this argument for further review.
Because nothing in the Supreme Court's Booker decision
requires us to change our prior affirmance in this case, we adhere
to our prior determination and therefore reinstate our judgment
AFFIRMING Rodriguez-Zuniga’s conviction and sentence.
AFFIRMED.
3