* 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opinion should not be published and is not precedent except under the limited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 23, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20664

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARINO LOUIS GONZALEZ,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-02-CR-664-1

 

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM:*

Marino Louis Gonzalez pleaded guilty to possession with intent

to distribute more than one kilogram of heroin, in violation of 21

U.S.C. § 841, and importation of more than one kilogram of heroin,

in violation of 21 U.S.C. §§ 952 and 960. The district court,

finding the applicable Guidelines imprisonment range to be 70-87
2

months, sentenced Gonzalez to 70 months of imprisonment and five

years of supervised release.

On appeal, Gonzalez challenged only the constitutionality of

the statutes under which he had been convicted. On February 18,

2004, we rejected that challenge and affirmed the conviction and

sentence. See United States v. Gonzalez, 88 Fed. Appx. 779 (5th

Cir. Feb. 18, 2004). On January 24, 2005, the Supreme Court

vacated our judgment and remanded to us for further consideration

in light of United States v. Booker, 125 S. Ct. 738 (2005). See

Jimenez-Velasco v. United States, 125 S. Ct. 1110 (2005)

(consolidated petition including Gonzalez).

Gonzalez now contends that his sentence runs afoul of Booker.

As Gonzalez acknowledges, he did not raise a Booker-type issue in

the district court and, thus, our review is for plain error.

United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition

for cert. filed, No. 04-9517 (U.S. Mar. 31, 2005). In order to

establish plain error, Gonzalez must show: (1) error, (2) that is

clear and obvious, and (3) that affects substantial rights. Mares,

402 F.3d at 520; United States v. Infante, 404 F.3d 376, 394 (5th

Cir. 2005). “‘If all three conditions are met an appellate court

may then exercise its discretion to notice a forfeited error but

only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’” Mares, 402 F.3d at

520 (quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
3

Gonzalez’s claim fails at the third step of the plain error

analysis because he has not shown that the error affected his

substantial rights. Although the district court selected a

sentence at the bottom end of the Guidelines imprisonment range,

there is no indication in the record that the district court would

have imposed a lower sentence if the guidelines had been advisory.

See Infante, 404 F.3d at 394-95; cf. United States v. Pennell, 409

F.3d 240, 246 (5th Cir. 2005) (third prong met where district court

sentenced defendant to low end of range and made comments

indicating that it would have imposed a lower sentence had it not

been constrained). He has not carried his “burden of demonstrating

that the result would have likely been different had the judge been

sentencing under the Booker advisory regime rather than the

pre-Booker mandatory regime.” Mares, 402 F.3d at 522 (emphasis

added); see also id. at 521 (“[T]he pertinent question is whether

[Appellant] demonstrated that the sentencing judge--sentencing

under an advisory scheme rather than a mandatory one--would have

reached a significantly different result.”). As Gonzalez has not

satisfied the third prong of the plain error test, he is not

entitled to resentencing.

We reinstate our prior opinion affirming Gonzalez’s conviction

and sentence is affirmed. AFFIRMED.