144 F. App'x 409

UNITED STATES of America, Plaintiff-Appellee, v. Sergio Arturo ROSALES, Defendant-Appellant.

No. 04-40162.

Conference Calendar.

United States Court of Appeals, Fifth Circuit.

Decided Aug. 10, 2005.

James Lee Turner, Kathlyn Giannaula Snyder, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Timothy William Crooks, Assistant Federal Public Defender, Marjorie A. Meyers, Federal Public Defender, Melissa J. Hinojosa-Garcia, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

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

*410 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

PER CURIAM: *

This court affirmed the judgment of conviction and sentence of Sergio Arturo Rosales. United States v. Rosales, 115 Fed.Appx. 709, No. 04-40162 (5th Cir. Dec. 17, 2004) (unpublished). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See de La Cruz-Gonzalez v. United States, — U.S. -, 125 S.Ct. 1995, — L.Ed.2d - (2005). We requested and received supplemental letter briefs addressing the impact of Booker.

Rosales argues that he is entitled to resentencing because the district court sentenced him under a mandatory application of the United States Sentencing Guidelines prohibited by Booker. However, he identifies “no evidence in the record suggesting that the district court would have imposed a lesser sentence under an advisory guidelines system.” United States v. Taylor, 409 F.3d 675, 677 (5th Cir.2005).

Rosales concedes that he cannot make the necessary showing of plain error that is required by our precedent. Furthermore, he correctly acknowledges that this court has rejected the argument that a Booker error is a structural error or that such error is presumed to be prejudicial. See United States v. Mares, 402 F.3d 511, 520-22 (5th Cir.2005), petition for cert. filed (Mar. 31, 2005) (No. 04-9517); see also United States v. Malveaux, 411 F.3d 558, 561 n. 9 (5th Cir.2005), petition for cert. filed (July 11, 2005) (No. 5297). He desires to preserve this argument for further review.

Because nothing in the Supreme Court’s Booker decision requires us to change our prior affirmance in this case, we therefore reinstate our judgment affirming Rosales’s conviction and sentence.

AFFIRMED.

United States v. Rosales
144 F. App'x 409

Case Details

Name
United States v. Rosales
Decision Date
Aug 10, 2005
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144 F. App'x 409

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United States

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