United States Court of Appeals

Fifth Circuit

FILED

May 26, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

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m 03-10709

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE CARBAJAL-MARTINEZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 4:03-CR-35-ALL

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2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH and WIENER,

Circuit Judges.*

PER CURIAM:

**

This court affirmed Jose Carbajal-Martinez’s sentence. United States v. CarbajalMartinez, 87 Fed. Appx. 368 (5th Cir. 2004)

(per curiam). The Supreme Court vacated and

remanded for further consideration in light of

United States v. Booker, 125 S. Ct. 738

(2005). Carbajal-Martinez v. United States,

125 S. Ct. 1110 (2005). We requested and received supplementalletter briefs addressing the

impact of Booker.

Carbajal-Martinez claims there is error

under Booker because the district court, rather

than a jury, made what we described in our

initial opinion as “factual findings regarding

the nature and extent of Carbajal’s criminal

history.” The district court largely adopted the

recommendations in the presentence report,

which narrated some ofthe details ofCarbajalMartinez’s past crimes.

The government claims there is no Booker

error because the district court used the facts

regarding Carbajal-Martinez’s criminal past to

justify an upward departure, which, as the

government states, “was not mandated by the

guidelines, but was within the district court’s

discretion.” Even assuming arguendo that the

court made findingsthat would violateBooker,

it is undisputed that Carbajal-Martinez did not

raise a Sixth Amendment objection or complain that the facts at issue must be decided by

a jury if not admitted to by the defendant. So,

even if there was Booker error, the government correctlycontends, inthe alternative, that

the plain errorstandard of review should apply

because Carbajal-Martinez did not preserve a

Sixth Amendment error. See United States v.

Mares, 402 F.3d 511, 520 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005)

(No. 04-9517). 

“An appellate court may not correct an

error the defendant failed to raise in the district

court unlessthere is‘(1) error, (2) that is plain,

and (3) that affects substantial rights.’” Id.

(quoting United States v. Cotton, 535 U.S.

625, 631 (2002)). If there is plain error here,

only the first two prongs are satisfied. 

With regard to the third prong, under Mares, “the defendant rather than the government

bearsthe burden of persuasion with respect to

prejudice.” Mares, 402 F.3d at 521 (citing

United States v. Olano, 507 U.S. 725, 734

(1993)). To show that his substantial rights

are affected, Carbajal-Martinez must “point[]

to . . . evidence in the record suggesting that

the district court would have imposed a lesser

sentence under anadvisoryguidelinessystem.”

United States v. Taylor, No. 03-10167, 2005

U.S. App. LEXIS 8701, at *4 (5th Cir. May

17, 2005) (per curiam) (citations omitted). In

other words, “the pertinent questioniswhether

[the defendant] demonstrated that the sentenc-

*

Judge Duhé was a member of this panel when

the opinion issued on February 12, 2004. Although he remains a Senior Circuit Judge on this

court, he is currently not hearing cases. Accordingly, this matter is decided by a quorum. See

28 U.S.C. § 46(d).

** 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.
3

ing judgeSSsentencing under an advisory

scheme rather than a mandatory oneSSwould

have reached a significantly different result.”

Mares, 402 F.3d at 521.

Carbajal-Martinez has presented nothing to

satisfy that burden. The district court’s

considerable departure (from a guidelines

range of 77-96 months to a sentence of 180

months) shows that the court was not influenced by any factual findings that may have

affected the calculation of the range. Accordingly, the judgment of sentence is

AFFIRMED.