* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

November 1, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40608

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ARTURO SAN MARTIN, 

also known as Ricardo Hernandez-Lozano,

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:03-CR-683-ALL

--------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. 

PER CURIAM:*

This court affirmed the judgment of conviction and sentence

of Arturo San Martin. United States v. San Martin, 117 Fed.

Appx. 985 (5th Cir. Dec. 17, 2004) (unpublished). The Supreme

Court vacated and remanded for further consideration in light of

United States v. Booker, 125 S. Ct. 738 (2005). We requested and

received supplemental letter briefs addressing the impact of

Booker. 
No. 04-40608

-2-

San Martin contends that the district court illegally

sentenced him pursuant to a mandatory Sentencing Guidelines

regime, in violation of Booker. He concedes that such argument

was raised for the first time on direct appeal and therefore is

reviewable for plain error. See United States v. Mares, 402 F.3d

511, 520-21 (5th Cir. 2005), cert. denied, --- U.S. ----, 126 S.

Ct. 43 (2005). This court finds plain error when: (1) there was

an error; (2) the error was clear and obvious; and (3) the error

affected the defendant’s substantial rights. Id. at 520. Here,

the first two prongs of the plain-error test are readily

satisfied because it is clear after Booker that application of

the Sentencing Guidelines in their mandatory form constitutes

error that is plain. Id. at 521.

To satisfy the third prong of the plain-error test, San

Martin must show that his “substantial rights” were affected. 

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

Cir. 2005), cert. denied, --- U.S. ----, 126 S. Ct. 267 (2005).

“[T]he pertinent question is whether [the appellant] demonstrated

that the sentencing judge--sentencing under an advisory scheme

rather than a mandatory one--would have reached a significantly

different result.” Mares, 402 F.3d at 521. This question

requires us to assess whether “there is [an] indication in the

record from the sentencing judge’s remarks or otherwise that

gives us any clue as to whether [ ]he would have reached a

different conclusion” if sentencing under an advisory scheme. 
No. 04-40608

-3-

Id. at 522. San Martin has conceded that he cannot make such a

showing under the Mares standard. To the extent that San Martin

argues that the Booker error is a “structural” one that is not

susceptible to a plain-error analysis, or that he alternatively

contends that plain-error prejudice should be presumed, this

court recently rejected such arguments. United States v.

Martinez-Lugo, 411 F.3d 597, 601 (5th Cir. 2005), cert. denied,

No. 05-6242, 2005 WL 2494163, at *1 (Oct. 11, 2005).

Because nothing in the Supreme Court’s Booker decision

requires us to change our prior affirmance of this case, we

reinstate our judgment affirming San Martin’s conviction and

sentence.

AFFIRMED.