United States v. Rodriguez

* 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this opinion should not be published and is not precedent except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
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50919
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL C. RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-80-2
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Angel C. Rodriguez appeals the sentence imposed following
his convictions relating to marihuana possession and
distribution. He argues that the district court plainly erred in
sentencing him under the mandatory Sentencing Guidelines held
unconstitutional in United States v. Booker, 543 U.S. 220 (2005).
Sentencing a defendant pursuant to a mandatory guidelines
scheme, without an accompanying Sixth Amendment violation,
constitutes “Fanfan” error. See United States v. Villegas,

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No. 04-50919
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404 F.3d 355, 364 (5th Cir. 2005). Rodriguez has met the first
two prongs of the plain error test because Fanfan error is
“error” that is “plain.” United States v. Martinez-Lugo, 411
F.3d 597, 600 (5th Cir.), cert. denied, 126 S. Ct. 464 (2005).
Rodriguez, however, has not borne his burden of showing that the
error affected his substantial rights. Id. The district court
sua sponte reduced Rodriguez’s offense level and sentenced him to
the bottom of the applicable guidelines range; however, such
leniency is, standing alone, insufficient to meet the third prong
of the plain error analysis where, as here, “[t]he record offers
no basis for inferring that, had he used the guidelines as
advisory, the court would have reduced the sentence.” Id. at 601
(internal quotation marks and citation omitted); see also United
States v. Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert.
denied, 126 S. Ct. 264 (2005).
AFFIRMED.

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