* 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this opinion should not be published and is not precedent except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 17, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40731

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN ENRIQUE BERNAL-ISLER,

also known as Jose Enrique Bernal,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:03-CR-1051-1

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

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 Martin Enrique BernalIsler (“Bernal”). See United States v. Bernal-Isler, 115 Fed.

Appx. 736 (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 Bernal-Isler v.

United States, 125 S. Ct. 1960 (2005). This court requested and
No. 04-40731

-2-

received supplemental letter briefs addressing the impact of

Booker. 

Bernal 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

(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
No. 04-40731

-3-

meet this burden. See United States v. Martinez-Lugo, 411 F.3d

597, 600-01 (5th Cir. 2005).

Bernal concedes that he cannot demonstrate that the district

court would have imposed a different sentence under an advisory

guideline scheme. See id. Bernal nevertheless contends that the

error committed by the district court is structural or

presumptively prejudicial. Bernal concedes that this argument is

foreclosed. See United States v. Malveaux, 411 F.3d 558, 560 n.9

(5th Cir. 2005), petition for cert. filed (July 11, 2005)(No. 05-

5297). Accordingly, Bernal has not met his burden of

establishing that his substantial rights were affected under the

third prong of the plain error test. See Martinez-Lugo, 411 F.3d

at 601. 

AFFIRMED.