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this opinion should not be published and is not precedent except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

June 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-11062

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE A CARDENAS

Defendant - Appellant

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-57-ALL-Y

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

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

Jose A. Cardenas pleaded guilty to bribery of a public

official, in violation of 18 U.S.C. § 201(b)(1)(A). Under the

Sentencing Guidelines, the district court sentenced Cardenas to

24 months in prison and to three years of supervised release. 

At the request of the Government, the court also issued an

alternative judgment, in the event that the Supreme Court

extended its holding in Blakely v. Washington, 124 S. Ct. 2531

(2004), to the Sentencing Guidelines and effectively rendered the
No. 04-11062

-2-

Guidelines advisory. In the alternative judgment, the district

court imposed the same 24-month prison term, “if there is no

parole,” or three years if there was a possibility of parole

under an advisory sentencing scheme.

As an initial matter, we observe sua sponte that Cardenas’s

written plea agreement contained a waiver-of-appeal provision. 

Because the magistrate judge who took Cardenas’s plea did not

call specific attention to this provision, however, we conclude

that the provision does not deprive us of jurisdiction to address

the merits of Cardenas’s appeal. See FED. R. APP. P. 11(b)(1)(N);

United States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002);

United States v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999). 

Cardenas contends that the district court erred in imposing

an eight-level offense-level increase under U.S.S.G. 

§ 2C1.1(b)(2)(B), on the ground that the offense involved a

“payment for the purpose of influencing an elected official or

any official holding a high-level decision-making or sensitive

position.” After the Supreme Court’s decision in United States

v. Booker, 125 S. Ct. 738 (2005), this court has held that the

application and interpretation of the guidelines continue be

reviewed de novo and that factual findings be reviewed for clear

error. See United States v. Villegas, 404 F.3d 355, ,

No. 03-21220 (5th Cir. Mar. 17, 2005), 2005 WL 627963 at

*2; United States v. Villanueva, F.3d , No. 03-20812

(5th Cir. Apr. 27, 2005), 2005 WL 958221 at **8-9 & n.9. 
No. 04-11062

-3-

Cardenas, who worked as a tax preparer, admitted that he

offered $1,000 to Internal Revenue Service (“IRS”) agent John

McMicken, in order to reduce the tax liability of a pair of his

clients following an audit conducted by McMicken. Although

McMicken’s role as a revenue agent was not supervisory, see

U.S.S.G. § 2C1.1, comment. (n.1), his job duties did entail

decision-making authority in the matter of the collection of

substantial sums of tax revenue. We conclude that the district

court did not err in determining that Agent McMicken occupied a

“sensitive” position and that the U.S.S.G. § 2C1.1(b)(2)(B)

increase was applicable. See United States v. Snell, 152 F.3d

345, 347-48 (5th Cir. 1998); United States v. Reneslacis,

349 F.3d 412, 416 (7th Cir. 2003).

Now citing Booker, Cardenas continues to argue, as he

did below, that the Sentencing Guidelines increases were

unconstitutional because they were based on factors that were

neither submitted to a jury for proof nor admitted by Cardenas. 

Insofar as the district court’s primary judgment was based on a

pre-Booker mandatory Guidelines regime, Cardenas is correct. See

Booker, 125 S. Ct. at 756. Cardenas overlooks, however, the

district court’s issuance of an identical alternative sentence,

which was based on speculation that the Supreme Court would

declare the mandatory Guidelines scheme unconstitutional and

require an advisory sentencing regime. Where, as here, a

defendant has preserved a Booker challenge in the district court,
No. 04-11062

-4-

“we will ordinarily vacate the sentence and remand, unless we can

say the error is harmless under Rule 52(a) of the Federal Rules

of Criminal Procedure.” United States v. Mares, 402, 511, 520

n.9 (5th Cir. 2005). In this case, based on the alternative

judgment, the Government has met its burden of demonstrating

beyond a reasonable doubt that the Sixth Amendment violation at

issue did not contribute to the sentence that Cardenas received. 

See United States v. Akpan, F.3d , No. 03-20875, 2005 WL

852416 at *12 (5th Cir. Apr. 14, 2005). Accordingly, we AFFIRM

Cardenas’s sentence. 

AFFIRMED.