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this opinion should not be published and is not precedent except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

April 14, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40681

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUADALUPE FERNANDEZ-PENA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:04-CR-10-1

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

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Guadalupe Fernandez-Pena ("Fernandez") appeals his sentence

following a guilty plea to one count of transportation of an

unlawful alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and

(a)(1)(B)(ii). Fernandez argues that the district court

erroneously determined his guidelines offense level by holding

him accountable under relevant conduct for the transportation of

additional aliens approximately 20 months before the offense of

conviction. He asserts that this conduct was too remote and
No. 04-40681

-2-

insufficiently similar to the offense of conviction to constitute

relevant conduct.

The 20-month gap between the conduct at issue is not

automatically too remote for consideration as relevant conduct.

See United States v. Miller, 179 F.3d 961, 967 n.10 (5th Cir.

1999). In both the offense of conviction and the prior conduct,

Fernandez, accompanied by a resident alien, transported a similar

number of illegal aliens in the back of a van from in or near

Falfurrias, Texas, and he was heading, inter alia, to Houston. 

Fernandez was to be paid for his efforts, and in both instances

at least some of the aliens were housed at a motel prior to

transportation. Both cases involved a similar modus operandi,

and in light of the similarity of the offenses, the district

court did not clearly err in including the prior conduct as

relevant conduct. See United States v. Anderson, 174 F.3d 515,

527 (5th Cir. 1999); U.S.S.G. § 1B1.3(a)(2).

Fernandez also argues for the first time on appeal that his

sentence must be vacated because the district court’s factual

findings on relevant conduct violated United States v. Booker,

125 S. Ct. 738 (2005), and Blakely v. Washington, 124 S. Ct. 2531

(2004). Because Fernandez did not object in the district court

on the same ground that he raises on appeal our review is for

plain error. See United States v. Krout, 66 F.3d 1420, 1434 (5th

Cir. 1995); United States v. Cabral-Castillo, 35 F.3d 182, 188-89

(5th Cir. 1994). Fernandez has shown a clear or obvious error. 
No. 04-40681

-3-

However, because there is no indication in the record from the

district court’s remarks or otherwise that indicates whether the

district court would have reached a different conclusion,

Fernandez cannot meet his burden of showing that the result would

have likely been different had the district court been sentencing

under the Booker advisory scheme rather than the pre-Booker

mandatory regime, and the plain error standard has not been

satisfied. See United States v. Mares, __ F.3d __, No. 03-21035,

2005 WL 503715 at *8-9 (5th Cir. Mar. 4, 2005).

AFFIRMED.