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this opinion should not be published and is not precedent except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

September 30, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40538

Conference Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

SAMIR LOPEZ-CRUZ

Defendant - Appellant

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:03-CR-896-ALL

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. 

PER CURIAM:*

On December 17, 2004, in an unpublished opinion, this court

affirmed the sentence of Samir Lopez-Cruz. United States v.

Lopez-Cruz, 115 Fed. Appx. 742 (5th Cir. 2004). The Supreme

Court has vacated and remanded for further consideration in light

of United States v. Booker, 125 S. Ct. 738 (2005). We requested

and received supplemental letter briefs addressing the impact of

Booker. 
No. 04-40538

-2-

Lopez contends that the district court illegally sentenced

him pursuant to a mandatory Sentencing Guidelines regime, in

violation of Booker. He concedes that such argument is raised

for the first time and is reviewable for plain error only. See

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (Mar. 31, 2005) (No. 04-9517). 

Sentencing a defendant pursuant to a mandatory guideline scheme,

standing alone, constitutes “Fanfan” error, and such an error is

“plain.” See Booker, 125 S. Ct. at 750, 768-69 (addressing

preserved challenge in companion case); United States v.

Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005),

petition for cert. filed (Jul. 25, 2005) (No. 05-5556).

To satisfy the third prong of the plain-error test, Lopez

must show that his “substantial rights” were affected. See

Valenzuela-Quevedo, 407 F.3d at 732. “The pertinent question is

whether [the appellant] demonstrated that the sentencing judge 

-–sentencing under an advisory scheme rather than a mandatory

one-–would have reached a significantly different result.” 

Mares, 402 F.3d at 521. This question requires us to assess

whether “there is [an] 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” if

sentencing under an advisory scheme. Id. at 522. There is no

indication in the record of Lopez’s sentencing that the district

court would have sentenced him differently under an advisory
No. 04-40538

-3-

regime. See United States v. Bringier, 405 F.3d 310, 317-18 n.4

(5th Cir. 2005), petition for cert. filed (Jul. 26, 2005)

(No. 05-5535) (imposition of sentence at bottom of guideline

range, standing alone, is no indication that judge would have

reached different conclusion under an advisory regime). 

To the extent that Lopez argues that the Booker error is a

“structural” one that is not susceptible to a plain-error

analysis, or that he alternatively contends that plain-error

prejudice should be presumed, this court has rejected such

arguments. United States v. Martinez-Lugo, 411 F.3d 597, 601

(5th Cir. 2005). 

Accordingly, we conclude that nothing in the Supreme Court’s

Booker decision requires us to change our prior affirmance in

this case. We therefore reinstate our judgment affirming the

defendant’s conviction and sentence.