United States v. Carbajal-Martinez

United States Court of Appeals
Fifth Circuit
F I L E D
May 26, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-10709
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE CARBAJAL-MARTINEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 4:03-CR-35-ALL
______________________________

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH and WIENER,
Circuit Judges.*
PER CURIAM:**
This court affirmed Jose Carbajal-Marti-
nez’s sentence. United States v. Carbajal-
Martinez, 87 Fed. Appx. 368 (5th Cir. 2004)
(per curiam). The Supreme Court vacated and
remanded for further consideration in light of
United States v. Booker, 125 S. Ct. 738
(2005). Carbajal-Martinez v. United States,
125 S. Ct. 1110 (2005). We requested and re-
ceived supplemental letter briefs addressing the
impact of Booker.
Carbajal-Martinez claims there is error
under Booker because the district court, rather
than a jury, made what we described in our
initial opinion as “factual findings regarding
the nature and extent of Carbajal’s criminal
history.” The district court largely adopted the
recommendations in the presentence report,
which narrated some of the details of Carbajal-
Martinez’s past crimes.
The government claims there is no Booker
error because the district court used the facts
regarding Carbajal-Martinez’s criminal past to
justify an upward departure, which, as the
government states, “was not mandated by the
guidelines, but was within the district court’s
discretion.” Even assuming arguendo that the
court made findings that would violate Booker,
it is undisputed that Carbajal-Martinez did not
raise a Sixth Amendment objection or com-
plain that the facts at issue must be decided by
a jury if not admitted to by the defendant. So,
even if there was Booker error, the govern-
ment correctly contends, in the alternative, that
the plain error standard of review should apply
because Carbajal-Martinez did not preserve a
Sixth Amendment error. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
“An appellate court may not correct an
error the defendant failed to raise in the district
court unless there is ‘(1) error, (2) that is plain,
and (3) that affects substantial rights.’” Id.
(quoting United States v. Cotton, 535 U.S.
625, 631 (2002)). If there is plain error here,
only the first two prongs are satisfied.
With regard to the third prong, under Mar-
es, “the defendant rather than the government
bears the burden of persuasion with respect to
prejudice.” Mares, 402 F.3d at 521 (citing
United States v. Olano, 507 U.S. 725, 734
(1993)). To show that his substantial rights
are affected, Carbajal-Martinez must “point[]
to . . . evidence in the record suggesting that
the district court would have imposed a lesser
sentence under an advisory guidelines system.”
United States v. Taylor, No. 03-10167, 2005
U.S. App. LEXIS 8701, at *4 (5th Cir. May
17, 2005) (per curiam) (citations omitted). In
other words, “the pertinent question is whether
[the defendant] demonstrated that the sentenc-
* Judge Duhé was a member of this panel when
the opinion issued on February 12, 2004. Al-
though he remains a Senior Circuit Judge on this
court, he is currently not hearing cases. Accord-
ingly, this matter is decided by a quorum. See
28 U.S.C. § 46(d).
** Pursuant to 5TH CIR. R. 47.5, the court has de-
termined 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.

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ing judgeSSsentencing under an advisory
scheme rather than a mandatory oneSSwould
have reached a significantly different result.”
Mares, 402 F.3d at 521.
Carbajal-Martinez has presented nothing to
satisfy that burden. The district court’s
considerable departure (from a guidelines
range of 77-96 months to a sentence of 180
months) shows that the court was not influ-
enced by any factual findings that may have
affected the calculation of the range. Accord-
ingly, the judgment of sentence is
AFFIRMED.

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