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

_______________



### m 03-10709

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### J OSE 

### C ARBAJAL 

### -M ARTINEZ



### ,

Defendant-Appellant.



### _________________________

Appeal from the United States District Court

for the Northern District of Texas



### m 4:03-CR-35-ALL

______________________________2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before S MITH

and W IENER

, Circuit Judges. *

P ER C URIAM : **

This court affirmed Jo se Carbajal-Martinez’s sentence. U

nited States v. Carbaja l

Martinez

, 87 F ed. 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 (2 005). C

arbajal-Martinez v. United States

, 125 S. Ct. 1110 (2005). We requested and received supplemental letter briefs ad dressing the impact of Booker

.

Carbajal-Martinez claims there is error under Booker because the district court, rather

than a jury, made w hat we described in our

init ial opinion as “factual findings reg arding

the n at ure and extent of Carbajal’s criminal history.” The district court largely adopted the

recommendations in the presentence report,
which narrated some of the details of CarbajalMartinez’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 a rguendo that the

court made findings that would violate Booker

, 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 Boo kererror, the government correctly contends, in the alternative, that

the plain error standard 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 Ci r. 2005), petition for cert. f

iled (Mar. 31, 2005) (No. 04-9517).

“An appellate court may not correct an

error the defendant failed to raise in the district

court unless there is ‘(1) error, (2) that is plain,

and (3) that affects substantial rights .’” I d. (qu o ting 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
bears the burden of persuasion with respect to prejudice.” M

ares , 402 F.3d at 521 (cit ing

United States v. Olano , 507 U.S. 725, 734 (1993)). To show that his substantial rights

are affected, Carbajal-Martinez must “point[]

t o . . . evidence in the record suggesting t hat

the district court would have imposed a lesser

sentence under an advisory guidelines system.”

United States v. Taylor

, No. 03-10167, 2005

U.S. App. LEXIS 8701 , at *4 (5th Ci r. May 17, 2005) (per curiam) (citations omitted). In

other words, “the pertinent question is whether [the defendant] demonstrated that the sentenc- * Judge Duhé was a member of this panel when

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

cour t, he is currently not hearing cases. Accordi ngly, this matter is decided by a quor um. See 28 U.S.C. § 46(d).

** Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published

and is not precedent exc ept under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.3

ing judge 

### SS

sentencing under an advisory

scheme rather than a mandatory one 

### S S would

have reached a significant ly different re sult.”

Mares , 402 F.3d at 521.

Carbajal-Martinez has presented nothing to satisfy that bur den. The district court’s

considerable dep art ure (from a guidelines

range of 77-96 months to a sentence of 180

mont hs) shows that the court was not influenced by any f

act ual findings that may have

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

AFFIRMED.