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this opinion should not be published and is not precedent except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

August 15, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40434

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ANDRES SAUZO-IZAGUIRRE,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:03-CR-1682-1

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

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 sentence of Carlos Andres SauzoIzaguirre (“Sauzo”). See United States v. Sauzo-Izaguirre,

115 Fed. Appx. 253 (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). See Vences v.

United States, 125 S. Ct. 1991 (2005). This court requested and
No. 04-40434

-2-

received supplemental letter briefs addressing the impact of

Booker. 

Sauzo argues that the district court erred in sentencing him

pursuant to a mandatory application of the sentencing guidelines.

He concedes that he did not object to his sentence in the

district court under Blakely v. Washington, 124 S. Ct. 2531

(2004), or under Booker, and that his failure to make an

objection of that type results in review for plain error. 

Under the plain-error standard, the defendant bears the

burden of showing that (1) there is an error, (2) the error is

plain, and (3) the error affects substantial rights. See United

States v. Olano, 507 U.S. 725, 732 (1993). If these conditions

are satisfied, this court may exercise its discretion to correct

the error only if it “seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.” Id. at 736-37

(internal quotation marks and citation omitted). 

To satisfy the third prong of the plain error test in light

of Booker, a defendant must demonstrate “with a probability

sufficient to undermine confidence in the outcome, that if the

judge had sentenced him under an advisory sentencing regime

rather than a mandatory one, he would have received a lesser

sentence.” United States v. Infante, 404 F.3d 376, 395 (5th Cir.

2005). Absent any indication in the record that the district

court would have imposed a lower sentence, a defendant does not

meet this burden. See United States v. Mares, 402 F.3d 511, 522
No. 04-40434

-3-

(5th Cir. 2005), petition for cert. filed (U.S. Mar. 31, 2005)

(No. 04-9517).

Sauzo contends that the error committed by the district

court is structural or presumptively prejudicial, but he concedes

that this argument is foreclosed. See United States v. Malveaux,

___ F.3d ___, No. 03-41618, 2005 WL 1320362, *1 n.9 (5th Cir.

Apr. 11, 2005). Sauzo also argues that his substantial rights

were affected. He contends that the district court was

sympathetic toward him because of his medical problems, and he

notes that the district court considered his condition in

determining his sentence. He argues that it is reasonably

probable that the district court would have imposed a lower

sentence under a post-Booker advisory regime. 

Sympathy toward the defendant “is not indicative of a

judge’s desire to sentence differently under a non-mandatory

Guidelines regime.” United States v. Creech, 408 F.3d 264, 272

(5th Cir. 2005). Here, “there is no 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” as to Sauzo’s sentence had he been sentencing under

an advisory regime. See Mares, 402 F.3d at 522. Accordingly,

Sauzo has not met his burden of establishing that his substantial

rights were affected under the third prong of the plain error

test. See id. 

The judgment of the district court is AFFIRMED.