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this opinion should not be published and is not precedent except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

January 12, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41831

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERAFIN ESQUIVEL-PADILLA,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:03-CR-106-1

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

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

Serafin Esquivel-Padilla (Esquivel) appeals his guilty-plea

conviction and sentence for conspiracy to possess with intent to

distribute more than 1,000 kilograms of marijuana, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Finding no error, we

affirm.

Esquivel first asserts that his sentence violates the rule

set forth in United States v. Booker, 543 U.S. 220 (2005),

because the district court made factual findings at sentencing

and sentenced him under the then-mandatory Sentencing Guidelines. 
No. 05-41831

-2-

Esquivel preserved these arguments by making an objection

pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and we

review for harmless error. See United States v. Rodriguez-Mesa,

443 F.3d 397, 404 (5th Cir. 2006). 

The district court unequivocally stated that, absent the

Federal Sentencing Guidelines, it would impose the same sentence.

This statement is sufficient to satisfy the Government’s burden

of demonstrating that the error was harmless beyond a reasonable

doubt. See United States v. Saldana, 427 F.3d 298, 314-15 (5th

Cir.), cert. denied, 126 S. Ct. 810 (2005). 

Esquivel’s argument that the alternative non-mandatory

sentence was unreasonable because the district court did not

consider all the factors set forth in 18 U.S.C. § 3553(a) also

fails. The district court stated that it had considered a number

of such factors, namely the nature of the offense, the offender

characteristics, and the need for punishment, deterrence, and

rehabilitation. See 18 U.S.C. § 3553(a)(1), (2)(A), (B), (D).

Further, the only § 3553(a) factor to which Esquivel points is

§ 3553(a)(6), which directs courts to consider “unwarranted

sentencing disparities among defendants with similar records who

have been found guilty of similar conduct.” Although Esquivel’s

co-defendants received lower sentences, the record is silent as

to the reasons for those sentences. Thus, we cannot determine

whether the disparities were unwarranted under § 3553(a)(6). 

Esquivel has not shown that the sentence was unreasonable.
No. 05-41831

-3-

In his final point of error, Esquivel contends that the

district court committed plain error by accepting his guilty plea

without an adequate factual basis. His argument is premised on

the prosecutor’s misstatement that 1,375 pounds, rather than

1,375 kilograms, of marijuana were involved. Thus, he asserts,

the factual basis does not support a conviction under 21 U.S.C.

§ 841(b)(1)(A), which provides penalties of 10 years to life, but

only a lesser offense under § 841(a)(1), with its penalties of

five to 40 years. 

As Esquivel concedes, because he failed to object, we review

for plain error. See United States v. Marek, 238 F.3d 310, 315

(5th Cir. 2001). Esquivel has not met his burden. The record as

a whole, including the trial testimony, establishes that more

than 1,000 kilograms were seized on the date in question. 

Esquivel was well aware of this information at the time he

pleaded guilty, he agreed that the conspiracy involved more than

1,000 kilograms of marijuana, and he knew that he faced

punishment of 10 years to life. Esquivel has failed to show that

the misstatement by the Government’s attorney affected his

substantial rights, i.e., that he would not have pleaded guilty

but for the error, see United States v. Reyes, 300 F.3d 555, 559

(5th Cir. 2002), nor has he shown that we should exercise our

discretion to correct any error. See Marek, 238 F.3d at 315.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.