* This appeal is being decided by a quorum due to the death

of Judge Reynaldo G. Garza. 28 U.S.C. § 46(d).

-1- United States Court of Appeals

Fifth Circuit



## FILED

November 7, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-10068

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RIGOBERTO GRIJALVA-LOPEZ, also known as MARCOS VENTURA-LOPEZ,

also known as JESUS GUARDADO-SANCHEZ, also known as MARIO

ALBERTO, also known as CARLOS ALBERTO, also known as JESUS GOMEZSANCHEZ, also known as MARCUS VENTURA-LOPEZ

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DAVIS and BARKSDALE, Circuit Judges. *

PER CURIAM:

In our previous opinion in this case, we affirmed DefendantAppellant’s conviction and sentence. S ee United Stat es v.

Grijalva-Lopez , No. 04-10068, 108 Fed. Appx. 157, (5th Cir. 2004)

(unpublished). Following our judgment, Grijalva-Lopez filed a-2-

petition for certiorari. T he Supreme Court granted GrijalvaLopez’s petition for certiorari, vacated our judgment, and remanded

the case to this court for further consideration in light of United

States v. Booker

, 125 S. Ct. 738 (2005). We now reconsider the

matter in light of Booker and decide to reinstate our previous

judgment affirming Grijalva-Lopez’s conviction and sentence.

Grijalva-Lopez raised a Booker -related challenge to his

sentence for the first time in a supplemental brief before his

direct appeal was submitted to this court. Because Appellant made

no Booker- r elated objection in the district court, however,

Appellant’s claim must fail under the plain-error test discussed in

United States v. Mares

, 402 F.3d 511, 520-22 (5th Cir. 2005). Our

review of the record reveals no basis for concluding that the

district court would have imposed a less severe sentence if the

district court had proceeded under advisory, rather than mandatory

guidelines. In fact, the record indicates that the court would n ot

have imposed a lighter sentence. First, the court upwardly

departed from a guideline range of 21-27 months to a sentence of 87

months. The court also ordered defendant to serve this sentence

consecutively to a sentence h e was serving at the time the court

imposed this sentence.

Grijalva-Lopez also argues that application of Justice

Breyer’s reme dial opinion in B ooker would strip him of his

constitutional protections against ex post facto laws. He explains-3-

that Apprendi gave him the right to a jury trial on all facts

essential to his sentence and Justice Breyer’s remedial opinion in

Booker stripped that right away. In U nited States v. Scroggins

,

411 F.3d 572, 575-76 (5th Cir. 2005) we rejected that argument and

held that Booker required us to apply both Justice Stevens’ merits

opinion and Justice Breyer’s remedial opinion in Booker to all

cases such as this one on direct review.

Finally, Grijalva-Lopez argues that his sentence was

unreasonable. Assuming arguendo that this argument can be made,

when this objection was not raised earlier, it has no merit with

respect to this guideline sentence. See Mares , 402 F.3d 511 (5th

Cir. 2005) (“ If the sentencing judge exercises her discretion to

impose a sentence within a properly calculated Guideline range, in

our reasonableness review we will infer that the judge has

considered all the factors for a fair senten ce set forth in the

Guidelines.”). Id. at 519.

For the reasons stated above, our prior disposition remains in

effect, and we REINSTATE OUR EARLIER JUDGMENT affirming GrijalvaLopez’s conviction and sentence.