United States v. Perez-Tostado

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES PER CURIAM: * This court affirmed the conviction and sentence of Carlos Perez-Tostado. United States v. Perez-Tostado, 115 Fed.Appx. 257 (5th Cir.2004) (unpublished). The Supreme Court vacated and remanded for further consideration in light of United States v. Booker, 543 U.S. 220, 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). This court requested and received supplemental letter briefs addressing the impact of Booker. In his supplemental letter brief, Perez-Tostado contends that the district court committed reversible plain error when it sentenced him pursuant to the mandatory United States Sentencing Guidelines held unconstitutional in Booker. He also argues that his Booker claim is not precluded by the terms of the appellate-waiver provision in his plea agreement. Because Perez-Tostado cannot prevail on his Booker claim, a ruling on the enforceability of his appeal waiver is pretermitted. The district court erred when it sentenced Perez — Tostado pursuant to the mandatory guidelines system held unconstitutional in Booker. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 267, 163 L.Ed.2d 240 (2005). By challenging his sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), on direct appeal, Perez-Tostado has sufficiently preserved Fanfan error for review on remand from the Supreme Court. See United States v. Cruz, 418 F.3d 481, 484 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 770, 163 L.Ed.2d 597 (2005). A Fanfan error is neither structural nor presumptively prejudicial and, instead, is subject to the plain error analysis set forth in United States v. Mares, 402 F.3d 511 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 464, 163 L.Ed.2d 352 (2005); United States v. Malveaux, 411 F.3d 558, 560 n. 9 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 194, 163 L.Ed.2d 209 (2005). Perez-Tostado has failed to point to any statements in the record indicating that the same sentence would not have been imposed had the district court known that the Guidelines were advisory. The record itself gives no indication that the district court would have reached a different result under an advisory guidelines system. Further, the fact that Perez-Tostado was sentenced at the lowest end of the guideline range does not demonstrate that the district court would have reached a different conclusion under an advisory sentencing scheme. See United States v. Bringier, 405 F.3d 310, 317 & n. 4 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 264, 163 L.Ed.2d 238 (2005). Given the lack of any indication in the record that the district court would have reached a different conclusion, Perez-Tostado has not demonstrated that his substantial rights were affected, and, thus, he has failed to establish plain error. See Mares, 402 F.3d at 520-22. *408 In his original appeal to this court, Perez-Tostado argued that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1826(b) were unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As this court previously held, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See also United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. —, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Booker did not overrule Almendarez-Torres. See Booker, 543 U.S. at 244, 125 S.Ct. 738. Booker does not require this court to change the prior affirmance in Perez-Tos-tado’s case. Accordingly, we REINSTATE our judgment affirming Perez-Tostado’s conviction and sentence. AFFIRMED. Footnotes [*] 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.