United States v. Lopez-Tovar

* 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this opinion should not be published and is not precedent except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
F I L E D
October 4, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40391
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS LOPEZ-TOVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-341-1
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
This court affirmed the sentence of Jose Luis Lopez-Tovar.
United States v. Lopez-Tovar, No. 04-40391 (5th Cir. Dec. 17,
2004) (unpublished). The Supreme Court 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.

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No. 04-40391
-2-
Lopez argues that, in light of Booker, his sentence is
invalid because the district court applied the Sentencing
Guidelines as if they were mandatory. Because Lopez did not
raise this issue in the district court, we review it for plain
error only. United States v. Mares, 402 F.3d 511, 513, 520-22
(5th Cir. 2005), petition for cert. filed (Mar. 31, 2005) (No.
04-9517); United States v. Valenzuela-Quevedo, 407 F.3d 728, 732
(5th Cir. 2005), petition for cert. filed (July 25, 2005) (No.
05-5556).
Lopez is unable to establish plain error with regard to his
Booker claim because he cannot establish that being sentenced
under a mandatory Guidelines scheme affected his substantial
rights. The record does not indicate that the district court
“would have reached a significantly different result” under a
sentencing scheme in which the Guidelines were advisory only.
See Mares, 402 F.3d at 522; Valenzuela-Quevedo, 407 F.3d at 733-
34. The court has also rejected Lopez’s argument that a Booker
error is structural and thus no prejudice must be shown. United
States v. Malveaux, 411 F.3d 558, 560 n.9 (5th Cir. 2005),
petition for cert. filed (July 11, 2005) (05-5297).
Accordingly, Lopez’s conviction and sentence are AFFIRMED.

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